Approval and Promulgation of Air Quality Implementation Plans; Louisiana; Infrastructure State Implementation Plan Requirements for the National Ambient Air Quality Standards, 68322-68335 [2016-24036]

Download as PDF 68322 Federal Register / Vol. 81, No. 192 / Tuesday, October 4, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES 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 VerDate Sep<11>2014 17:56 Oct 03, 2016 Jkt 241001 PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R06–OAR–2013–0465; FRL–9952–82Region 6] Approval and Promulgation of Air Quality Implementation Plans; Louisiana; Infrastructure State Implementation Plan Requirements for the National Ambient Air Quality Standards Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: 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. SUMMARY: 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. DATES: E:\FR\FM\04OCR1.SGM 04OCR1 Federal Register / Vol. 81, No. 192 / Tuesday, October 4, 2016 / Rules and Regulations 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 asabaliauskas on DSK3SPTVN1PROD with RULES 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 VerDate Sep<11>2014 17:56 Oct 03, 2016 Jkt 241001 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 PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 68323 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 E:\FR\FM\04OCR1.SGM 04OCR1 68324 Federal Register / Vol. 81, No. 192 / Tuesday, October 4, 2016 / Rules and Regulations 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. asabaliauskas on DSK3SPTVN1PROD with RULES 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 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. 2 Thus, 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. VerDate Sep<11>2014 17:56 Oct 03, 2016 Jkt 241001 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 PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 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 E:\FR\FM\04OCR1.SGM 04OCR1 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 192 / Tuesday, October 4, 2016 / Rules and Regulations 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 3 While 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. VerDate Sep<11>2014 17:56 Oct 03, 2016 Jkt 241001 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 PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 68325 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 E:\FR\FM\04OCR1.SGM 04OCR1 68326 Federal Register / Vol. 81, No. 192 / Tuesday, October 4, 2016 / Rules and Regulations 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. asabaliauskas on DSK3SPTVN1PROD with RULES 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 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. VerDate Sep<11>2014 17:56 Oct 03, 2016 Jkt 241001 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 PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 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 5 Sierra 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. E:\FR\FM\04OCR1.SGM 04OCR1 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 192 / Tuesday, October 4, 2016 / Rules and Regulations 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 VerDate Sep<11>2014 17:56 Oct 03, 2016 Jkt 241001 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/so2pollution/technical-assistancedocuments-implementing-2010-sulfurdioxide-standard. Therefore, EPA asserts that SIP revisions for SO2 nonattainment areas PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 68327 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 E:\FR\FM\04OCR1.SGM 04OCR1 asabaliauskas on DSK3SPTVN1PROD with RULES 68328 Federal Register / Vol. 81, No. 192 / Tuesday, October 4, 2016 / Rules and Regulations (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 VerDate Sep<11>2014 17:56 Oct 03, 2016 Jkt 241001 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 6 See, 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. PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 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, 1hour 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 E:\FR\FM\04OCR1.SGM 04OCR1 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 192 / Tuesday, October 4, 2016 / Rules and Regulations 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 VerDate Sep<11>2014 17:56 Oct 03, 2016 Jkt 241001 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/so2pollution/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 PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 68329 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 E:\FR\FM\04OCR1.SGM 04OCR1 asabaliauskas on DSK3SPTVN1PROD with RULES 68330 Federal Register / Vol. 81, No. 192 / Tuesday, October 4, 2016 / Rules and Regulations 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 VerDate Sep<11>2014 17:56 Oct 03, 2016 Jkt 241001 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 7 Sierra 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). PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 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 8 See, http://www.deq.louisiana.gov/portal/ Portals/0/AirQualityAssessment/Planning/SIP/ SO2%20SIP%20with%20Appendices%20%20Final.pdf. 9 For 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 30days, 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. E:\FR\FM\04OCR1.SGM 04OCR1 Federal Register / Vol. 81, No. 192 / Tuesday, October 4, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES 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, 10 The 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. 11 While 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. VerDate Sep<11>2014 17:56 Oct 03, 2016 Jkt 241001 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 PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 68331 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 E:\FR\FM\04OCR1.SGM 04OCR1 asabaliauskas on DSK3SPTVN1PROD with RULES 68332 Federal Register / Vol. 81, No. 192 / Tuesday, October 4, 2016 / Rules and Regulations 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 VerDate Sep<11>2014 17:56 Oct 03, 2016 Jkt 241001 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 12 81 PO 00000 FR 35674. Frm 00040 Fmt 4700 Sfmt 4700 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. E:\FR\FM\04OCR1.SGM 04OCR1 Federal Register / Vol. 81, No. 192 / Tuesday, October 4, 2016 / Rules and Regulations 68333 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 ............. (B): Ambient air quality monitoring and data system ...... (C)(i): Enforcement of SIP measures .............................. (C)(ii): PSD program for major sources and major modifications ........................................................................ (C)(iii): Permitting program for minor sources and minor modifications ................................................................. (D)(i)(I): Contribute to nonattainment/interfere with maintenance of NAAQS (requirements 1 and 2) ................. (D)(i)(II): PSD (requirement 3) ......................................... (D)(i)(II): Visibility Protection (requirement 4) .................. (D)(ii): Interstate and International Pollution Abatement (E)(i): Adequate resources ............................................... (E)(ii): State boards .......................................................... (E)(iii): Necessary assurances with respect to local agencies ....................................................................... (F): Stationary source monitoring system ........................ (G): Emergency power ..................................................... (H): Future SIP revisions ................................................. (I): Nonattainment area plan or plan revisions under part D ............................................................................ (J)(i): Consultation with government officials ................... (J)(ii): Public notification ................................................... (J)(iii): PSD ....................................................................... (J)(iv): Visibility protection ................................................ (K): Air quality modeling and data ................................... (L): Permitting fees .......................................................... (M): Consultation and participation by affected local entities .............................................................................. A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A* A D A A A A A A A A A No action A D A A A A A D A A A No action A D A A A No action A D A A A A A A A A A A A A A A A A A A A A A A A A A A A + A A A + A A + A A A + A A + A A A + A A + A A A + A A + A A A + A A + A A A + A A 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. asabaliauskas on DSK3SPTVN1PROD with RULES 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 VerDate Sep<11>2014 17:56 Oct 03, 2016 Jkt 241001 governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks E. Executive Order 13132: Federalism 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. 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. PO 00000 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. Frm 00041 Fmt 4700 Sfmt 4700 E:\FR\FM\04OCR1.SGM 04OCR1 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 * EPA approval date * Statewide ............................... * 5/16/11 * 10/4/16 [Insert Federal Register citation]. Infrastructure for the 2008 Pb NAAQS. Statewide ............................... 10/10/11 10/4/16 [Insert Federal Register citation]. Infrastructure for the 2008 O3 NAAQS. Statewide ............................... 6/4/13 10/4/16 [Insert Federal Register citation]. Infrastructure for the 2010 NO2 NAAQS. Statewide ............................... 6/4/13 10/4/16 [Insert Federal Register citation]. Infrastructure for the 2010 SO2 NAAQS. asabaliauskas on DSK3SPTVN1PROD with RULES * Infrastructure for the 2006 PM2.5 NAAQS. State submittal/ effective date Applicable geographic or nonattainment area Name of SIP provision Statewide ............................... 6/4/13 10/4/16 [Insert Federal Register citation]. Infrastructure for the 2012 PM2.5 NAAQS. Statewide ............................... 12/17/15 10/4/16 [Insert Federal Register citation]. 3. Section 52.996 is amended by adding paragraph (b) to read as follows: ■ VerDate Sep<11>2014 17:56 Oct 03, 2016 Jkt 241001 § 52.996 * PO 00000 * Disapprovals. * Frm 00042 * Fmt 4700 * Sfmt 4700 Explanation * * 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). Approval for 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L) and (M). 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). 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). Approval for 110(a)(2)(A), (B), (C), (D)(i) (portion pertaining PSD), D(ii), (E), (F), (G), (H), (J), (K), (L) and (M). 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). (b) The portions of the SIP submitted on May 16, 2011, June 4, 2013, and E:\FR\FM\04OCR1.SGM 04OCR1 Federal Register / Vol. 81, No. 192 / Tuesday, October 4, 2016 / Rules and Regulations 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 II. Public Comments Not Required Office of Acquisition Policy, General Services Administration (GSA). ACTION: Final rule. AGENCY: 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: SUMMARY: asabaliauskas on DSK3SPTVN1PROD with RULES 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. VerDate Sep<11>2014 17:56 Oct 03, 2016 Jkt 241001 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. 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. PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 68335 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 E:\FR\FM\04OCR1.SGM 04OCR1

Agencies

[Federal Register Volume 81, Number 192 (Tuesday, October 4, 2016)]
[Rules and Regulations]
[Pages 68322-68335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-24036]


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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.

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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.

[[Page 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 i-SIPs 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 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.
    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

[[Page 68324]]

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.
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    \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.
    \2\ Thus, 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.
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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

[[Page 68325]]

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\
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    \3\ While 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.
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    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 pre-1990 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 i-SIP 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

[[Page 68326]]

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\
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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.
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    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 coal-fired 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

[[Page 68327]]

maintenance of the NAAQS at all times.''
---------------------------------------------------------------------------

    \5\ Sierra 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.
---------------------------------------------------------------------------

    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 i-SIP 
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-assistance-documents-implementing-2010-sulfur-dioxide-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 pre-existing 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

[[Page 68328]]

(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 i-SIPs 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.
---------------------------------------------------------------------------

    \6\ See, 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.
---------------------------------------------------------------------------

    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

[[Page 68329]]

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-assistance-documents-implementing-2010-sulfur-dioxide-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

[[Page 68330]]

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 i-SIP 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\
---------------------------------------------------------------------------

    \7\ Sierra 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).
---------------------------------------------------------------------------

    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

[[Page 68331]]

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.
---------------------------------------------------------------------------

    \8\ See, http://www.deq.louisiana.gov/portal/Portals/0/AirQualityAssessment/Planning/SIP/SO2%20SIP%20with%20Appendices%20-%20Final.pdf.
    \9\ For 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.
    \10\ The 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \11\ While 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.
---------------------------------------------------------------------------

    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 
i-SIP 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 cost-effectively 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 i-
SIPs 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

[[Page 68332]]

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 i-SIP. 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 cross-
state 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).
---------------------------------------------------------------------------

    \12\ 81 FR 35674.
---------------------------------------------------------------------------

    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 i-SIP 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.

[[Page 68333]]



                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                A             A             A             A             A             A
 other control measures.....
(B): Ambient air quality                A             A             A             A             A             A
 monitoring and data system.
(C)(i): Enforcement of SIP              A             A             A             A             A             A
 measures...................
(C)(ii): PSD program for                A             A             A             A             A             A
 major sources and major
 modifications..............
(C)(iii): Permitting program            A             A             A             A             A             A
 for minor sources and minor
 modifications..............
(D)(i)(I): Contribute to               A*             A     No action             A     No action     No action
 nonattainment/interfere
 with maintenance of NAAQS
 (requirements 1 and 2).....
(D)(i)(II): PSD (requirement            A             A             A             A             A             A
 3).........................
(D)(i)(II): Visibility                  D             A             D             D             D             D
 Protection (requirement 4).
(D)(ii): Interstate and                 A             A             A             A             A             A
 International Pollution
 Abatement..................
(E)(i): Adequate resources..            A             A             A             A             A             A
(E)(ii): State boards.......            A             A             A             A             A             A
(E)(iii): Necessary                     A             A             A             A             A             A
 assurances with respect to
 local agencies.............
(F): Stationary source                  A             A             A             A             A             A
 monitoring system..........
(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               A             A             A             A             A             A
 government officials.......
(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               A             A             A             A             A             A
 and data...................
(L): Permitting fees........            A             A             A             A             A             A
(M): Consultation and                   A             A             A             A             A             A
 participation by affected
 local entities.............
----------------------------------------------------------------------------------------------------------------
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.

[[Page 68334]]

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

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart T--Louisiana

0
2. Section 52.970(e) is amended by adding six entries at the end of the 
second table titled ``EPA Approved Louisiana Provisions and Quasi-
Regulatory Measures'' to read as follows:


Sec.  52.970  Identification of plan.

* * * * *
    (e) * * *

                  EPA Approved Louisiana Nonregulatory Provisions and Quasi-Regulatory Measures
----------------------------------------------------------------------------------------------------------------
                                        Applicable           State
      Name of SIP provision           geographic or       submittal/     EPA approval date       Explanation
                                    nonattainment area  effective date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Infrastructure for the 2006 PM2.5  Statewide..........         5/16/11  10/4/16 [Insert      Approval for
 NAAQS.                                                                  Federal Register     110(a)(2)(A), (B),
                                                                         citation].           (C), (D)(i)
                                                                                              (portion
                                                                                              pertaining to
                                                                                              PSD), D(ii), (E),
                                                                                              (F), (G), (H),
                                                                                              (J), (K), (L) and
                                                                                              (M).
Infrastructure for the 2008 Pb     Statewide..........        10/10/11  10/4/16 [Insert      Approval for
 NAAQS.                                                                  Federal Register     110(a)(2)(A), (B),
                                                                         citation].           (C), (D), (E),
                                                                                              (F), (G), (H),
                                                                                              (J), (K), (L) and
                                                                                              (M).
Infrastructure for the 2008 O3     Statewide..........          6/4/13  10/4/16 [Insert      Approval for
 NAAQS.                                                                  Federal Register     110(a)(2)(A), (B),
                                                                         citation].           (C), (D)(i)
                                                                                              (portion
                                                                                              pertaining to
                                                                                              PSD), D(ii), (E),
                                                                                              (F), (G), (H),
                                                                                              (J), (K), (L) and
                                                                                              (M).
Infrastructure for the 2010 NO2    Statewide..........          6/4/13  10/4/16 [Insert      Approval for
 NAAQS.                                                                  Federal Register     110(a)(2)(A), (B),
                                                                         citation].           (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    Statewide..........          6/4/13  10/4/16 [Insert      Approval for
 NAAQS.                                                                  Federal Register     110(a)(2)(A), (B),
                                                                         citation].           (C), (D)(i)
                                                                                              (portion
                                                                                              pertaining PSD),
                                                                                              D(ii), (E), (F),
                                                                                              (G), (H), (J),
                                                                                              (K), (L) and (M).
Infrastructure for the 2012 PM2.5  Statewide..........        12/17/15  10/4/16 [Insert      Approval for
 NAAQS.                                                                  Federal Register     110(a)(2)(A), (B),
                                                                         citation].           (C), (D)(i)
                                                                                              (portion
                                                                                              pertaining to
                                                                                              PSD), D(ii), (E),
                                                                                              (F), (G), (H),
                                                                                              (J), (K), (L) and
                                                                                              (M).
----------------------------------------------------------------------------------------------------------------


0
3. Section 52.996 is amended by adding paragraph (b) to read as 
follows:


Sec.  52.996  Disapprovals.

* * * * *
    (b) The portions of the SIP submitted on May 16, 2011, June 4, 
2013, and

[[Page 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