[Federal Register Volume 76, Number 138 (Tuesday, July 19, 2011)]
[Rules and Regulations]
[Pages 42549-42557]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-18061]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2008-0635; FRL-9437-8]


Approval and Promulgation of Air Quality Implementation Plans; 
Louisiana; Section 110(a)(2) Infrastructure Requirements for 1997 8-
Hour Ozone and Fine Particulate Matter National Ambient Air Quality 
Standards

AGENCY: Environmental Protection Agency (EPA)

ACTION: Final rule.

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SUMMARY: EPA is approving submittals from the state of Louisiana 
pursuant to the Clean Air Act (CAA or Act) that address the 
infrastructure elements specified in the CAA section 110(a)(2), 
necessary to implement, maintain, and enforce the 1997 8-hour ozone and 
1997 fine particulate matter (PM2.5) national ambient air 
quality standards (NAAQS or standards). We are determining that the 
current Louisiana State Implementation Plan (SIP) meets the following 
infrastructure elements which were subject to EPA's completeness 
findings pursuant to CAA section 110(k)(1) for the 1997 8-hour ozone

[[Page 42550]]

NAAQS dated March 27, 2008, and the 1997 PM2.5 NAAQS dated 
October 22, 2008: 110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H), 
(J), (K), (L), and (M). EPA is also approving SIP revisions that modify 
Louisiana's Prevention of Significant Deterioration (PSD) SIP for the 
1997 8-hour ozone NAAQS to include nitrogen oxides (NOX) as 
an ozone precursor. This action is being taken under section 110 and 
part C of the Act.

DATES: This rule is effective on August 18, 2011.

ADDRESSES: EPA established a docket for this action under Docket ID No. 
EPA-R06-OAR-2008-0635. All documents in the docket are listed at http://www.regulations.gov. 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 form. 
Publicly available docket materials are available either electronically 
through http://www.regulations.gov or in hard copy at the Air Planning 
Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733. The file will be made available by 
appointment for public inspection in the Region 6 Freedom of 
Information Act (FOIA) Review Room between the hours of 8:30 a.m. and 
4:30 p.m. weekdays except for legal holidays. Contact the person listed 
in the FOR FURTHER INFORMATION CONTACT paragraph below or Mr. Bill 
Deese at 214-665-7253 to make an appointment. Please make the 
appointment at least two working days in advance of your visit. There 
is a fee of 15 cents per page for making photocopies of documents. On 
the day of the visit, please check in at the EPA Region 6 reception 
area at 1445 Ross Avenue, Suite 700, Dallas, Texas.

FOR FURTHER INFORMATION CONTACT: Ms. Carrie Paige, Air Planning Section 
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733, telephone 214-665-6521; fax number 
214-665-6762; e-mail address [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' means EPA.

Table of Contents

I. Background
II. Additional Background Information
III. What action is EPA taking?
IV. Comments
V. Final Action
VI. Statutory and Executive Order Reviews

I. Background

    The background for today's actions is discussed in detail in our 
April 18, 2011 proposal to approve revisions to the Louisiana SIP (76 
FR 21682). In that action, we proposed to find the current Louisiana 
SIP meets the provisions of the CAA sections 110(a)(1) and 110(a)(2) 
(i.e., 110(a)(2)(A)-(C), (D)(ii), (E)-(H), and (J)-(M)) for the 1997 
ozone and 1997 PM2.5 NAAQS. We also proposed to approve four 
revisions to the Louisiana PSD SIP that address NOX as a 
precursor to ozone.
    Our April 18, 2011 proposal provides a detailed description of the 
revisions and the rationale for EPA's proposed actions, together with a 
discussion of the opportunity to comment. The public comment period for 
these actions closed on May 18, 2011. See the Technical Support 
Document (TSD) and our proposed rulemaking at 76 FR 21682 for more 
information.

II. Additional Background Information

    EPA is currently acting upon SIPs that address the infrastructure 
requirements of CAA section 110(a)(1) and (2) for ozone and 
PM2.5 NAAQS for various states across the country. 
Commenters on EPA's recent proposals for some states raised concerns 
about EPA statements that it was not addressing certain substantive 
issues in the context of acting on the infrastructure SIP 
submissions.\1\ The commenters specifically raised concerns involving 
provisions in existing SIPs and with EPA's statements that it would 
address two issues separately and not as part of actions on the 
infrastructure SIP submissions: (i) Existing provisions related to 
excess emissions during periods of start-up, shutdown, or malfunction 
at sources, that may be contrary to the CAA and EPA's policies 
addressing such excess emissions (``SSM''); and (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that purport to permit revisions to SIP approved emissions 
limits with limited public process or without requiring further 
approval by EPA, that may be contrary to the CAA (``director's 
discretion''). EPA notes that there are two other substantive issues 
for which EPA likewise stated that it would address the issues 
separately: (i) Existing provisions for minor source new source review 
programs that may be inconsistent with the requirements of the CAA and 
EPA's regulations that pertain to such programs (``minor source NSR''); 
and (ii) existing provisions for Prevention of Significant 
Deterioration programs that may be inconsistent with current 
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR 
Reform''). In light of the comments, EPA now believes that its 
statements in various proposed actions on infrastructure SIPs with 
respect to these four individual issues should be explained in greater 
depth with respect to these issues. EPA notes that we did not receive 
comments on these issues in response to our Louisiana proposal (76 FR 
21682), but because of the concern raised in the context of action on 
other state infrastructure SIP submissions, EPA feels it important to 
further clarify our proposal.
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    \1\ See, Comments of Midwest Environmental Defense Center, dated 
May 31, 2011. Docket  EPA-R05-OAR-2007-1179 (adverse 
comments on proposals for three states in Region 5). EPA notes that 
these public comments on another proposal are not relevant to this 
rulemaking and do not have to be directly addressed in this 
rulemaking. EPA will respond to these comments in the appropriate 
rulemaking action to which they apply.
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    EPA intended the statements in the proposals concerning these four 
issues merely to be informational, and to provide general notice of the 
potential existence of provisions within the existing SIPs of some 
states that might require future corrective action. EPA did not want 
states, regulated entities, or members of the public to be under the 
misconception that the Agency's approval of the infrastructure SIP 
submission of a given state should be interpreted as a reapproval of 
certain types of provisions that might exist buried in the larger 
existing SIP for such state. Thus, for example, EPA explicitly noted 
that the Agency believes that some states may have existing SIP 
approved SSM provisions that are contrary to the CAA and EPA policy, 
but that ``in this rulemaking, EPA is not proposing to approve or 
disapprove any existing State provisions with regard to excess 
emissions during SSM of operations at facilities.'' EPA further 
explained, for informational purposes, that ``EPA plans to address such 
State regulations in the future.'' EPA made similar statements, for 
similar reasons, with respect to the director's discretion, minor 
source NSR, and NSR Reform issues. EPA's objective was to make clear 
that approval of an infrastructure SIP for these ozone and 
PM2.5 NAAQS should not be construed as explicit or implicit 
reapproval of any existing provisions that relate to these four 
substantive issues.
    Unfortunately, the commenters and others evidently interpreted 
these

[[Page 42551]]

statements to mean that EPA considered action upon the SSM provisions 
and the other three substantive issues to be integral parts of acting 
on an infrastructure SIP submission, and therefore that EPA was merely 
postponing taking final action on the issue in the context of the 
infrastructure SIPs. This was not EPA's intention. To the contrary, EPA 
only meant to convey its awareness of the potential for certain types 
of deficiencies in existing SIPs, and to prevent any misunderstanding 
that it was reapproving any such existing provisions. EPA's intention 
was to convey its position that the statute does not require that 
infrastructure SIPs address these specific substantive issues in 
existing SIPs and that these issues may be dealt with separately, 
outside the context of acting on the infrastructure SIP submission of a 
state. To be clear, EPA did not mean to imply that it was not taking a 
full final agency action on the infrastructure SIP submission with 
respect to any substantive issue that EPA considers to be a required 
part of acting on such submissions under section 110(k) or under 
section 110(c). Given the confusion evidently resulting from EPA's 
statements, however, we want to explain more fully the Agency's reasons 
for concluding that these four potential substantive issues in existing 
SIPs may be addressed separately.
    The requirement for the SIP submissions at issue arises out of CAA 
section 110(a)(1). That provision requires that states must make a SIP 
submission ``within 3 years (or such shorter period as the 
Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof)'' and 
that these SIPS are to provide for the ``implementation, maintenance, 
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of 
specific elements that ``[e]ach such plan'' submission must meet. EPA 
has historically referred to these particular submissions that states 
must make after the promulgation of a new or revised NAAQS as 
``infrastructure SIPs.'' This specific term does not appear in the 
statute, but EPA uses the term to distinguish this particular type of 
SIP submission designed to address basic structural requirements of a 
SIP from other types of SIP submissions designed to address other 
different requirements, such as ``nonattainment SIP'' submissions 
required to address the nonattainment planning requirements of part D, 
``regional haze SIP'' submissions required to address the visibility 
protection requirements of CAA section 169A, new source review 
permitting program submissions required to address the requirements of 
part D, and a host of other specific types of SIP submissions that 
address other specific matters.
    Although section 110(a)(1) addresses the timing and general 
requirements for these infrastructure SIPs, and section 110(a)(2) 
provides more details concerning the required contents of these 
infrastructure SIPs, EPA believes that many of the specific statutory 
provisions are facially ambiguous. In particular, the list of required 
elements provided in section 110(a)(2) contains a wide variety of 
disparate provisions, some of which pertain to required legal 
authority, some of which pertain to required substantive provisions, 
and some of which pertain to requirements for both authority and 
substantive provisions.\2\ Some of the elements of section 110(a)(2) 
are relatively straightforward, but others clearly require 
interpretation by EPA through rulemaking, or recommendations through 
guidance, in order to give specific meaning for a particular NAAQS.\3\
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    \2\ For example, section 110(a)(2)(E) provides that states must 
provide assurances that they have adequate legal authority under 
state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a substantive program to address 
certain sources as required by part C of the CAA; section 
110(a)(2)(G) provides that states must have both legal authority to 
address emergencies and substantive contingency plans in the event 
of such an emergency.
    \3\ For example, section 110(a)(2)(D)(i) requires EPA to be sure 
that each state's SIP contains adequate provisions to prevent 
significant contribution to nonattainment of the NAAQS in other 
states. This provision contains numerous terms that require 
substantial rulemaking by EPA in order to determine such basic 
points as what constitutes significant contribution. See, e.g., 
``Rule To Reduce Interstate Transport of Fine Particulate Matter and 
Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; 
Revisions to the NOX SIP Call; Final Rule,'' 70 FR 25162 
(May 12, 2005) (defining, among other things, the phrase 
``contribute significantly to nonattainment'').
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    Notwithstanding that section 110(a)(2) states that ``each'' SIP 
submission must meet the list of requirements therein, EPA has long 
noted that this literal reading of the statute is internally 
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment 
SIP requirements that could not be met on the schedule provided for 
these SIP submissions in section 110(a)(1).\4\ This illustrates that 
EPA must determine which provisions of section 110(a)(2) may be 
applicable for a given infrastructure SIP submission. Similarly, EPA 
has previously decided that it could take action on different parts of 
the larger, general ``infrastructure SIP'' for a given NAAQS without 
concurrent action on all subsections, such as section 110(a)(2)(D)(i), 
because the Agency bifurcated the action on these latter ``interstate 
transport'' provisions within section 110(a)(2) and worked with states 
to address each of the four prongs of section 110(a)(2)(D)(i) with 
substantive administrative actions proceeding on different tracks with 
different schedules.\5\ This illustrates that EPA may conclude that 
subdividing the applicable requirements of section 110(a)(2) into 
separate SIP actions may sometimes be appropriate for a given NAAQS 
where a specific substantive action is necessitated, beyond a mere 
submission addressing basic structural aspects of the state's SIP. 
Finally, EPA notes that not every element of section 110(a)(2) would be 
relevant, or as relevant, or relevant in the same way, for each new or 
revised NAAQS and the attendant infrastructure SIP submission for that 
NAAQS. For example, the monitoring requirements that might be necessary 
for purposes of section 110(a)(2)(B) for one NAAQS could be very 
different than what might be necessary for a different pollutant. Thus, 
the content of an infrastructure SIP submission to meet this element 
from a state might be very different for an entirely new NAAQS, versus 
a minor revision to an existing NAAQS.\6\
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    \4\ See, e.g., Id., 70 FR 25162, at 63-65 (May 12, 2005) 
(explaining relationship between timing requirement of section 
110(a)(2)(D) versus section 110(a)(2)(I)).
    \5\ EPA issued separate guidance to states with respect to SIP 
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and 
1997 PM2.5 NAAQS. See, ``Guidance for State 
Implementation Plan (SIP) Submissions to Meet Current Outstanding 
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and 
PM2.5 National Ambient Air Quality Standards,'' from 
William T. Harnett, Director Air Quality Policy Division OAQPS, to 
Regional Air Division Director, Regions I-X, dated August 15, 2006.
    \6\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    Similarly, EPA notes that other types of SIP submissions required 
under the statute also must meet the requirements of section 110(a)(2), 
and this also demonstrates the need to identify the applicable elements 
for other SIP submissions. For example, nonattainment SIPs required by 
part D likewise have to meet the relevant subsections of section 
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear 
that nonattainment SIPs would not need to meet the portion of section 
110(a)(2)(C) that pertains to part C, i.e., the PSD requirement 
applicable in attainment areas. Nonattainment SIPs required by part D 
also would not need

[[Page 42552]]

to address the requirements of section 110(a)(2)(G) with respect to 
emergency episodes, as such requirements would not be limited to 
nonattainment areas. As this example illustrates, each type of SIP 
submission may implicate some subsections of section 110(a)(2) and not 
others.
    Given the potential for ambiguity of the statutory language of 
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA 
to interpret that language in the context of acting on the 
infrastructure SIPs for a given NAAQS. Because of the inherent 
ambiguity of the list of requirements in section 110(a)(2), EPA has 
adopted an approach in which it reviews infrastructure SIPs against 
this list of elements ``as applicable.'' In other words, EPA assumes 
that Congress could not have intended that each and every SIP 
submission, regardless of the purpose of the submission or the NAAQS in 
question, would meet each of the requirements, or meet each of them in 
the same way. EPA elected to use guidance to make recommendations for 
infrastructure SIPs for these NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for 
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS 
and the 1997 PM2.5 NAAQS.\7\ Within this guidance document, 
EPA described the duty of states to make these submissions to meet what 
the Agency characterized as the ``infrastructure'' elements for SIPs, 
which it further described as the ``basic SIP requirements, including 
emissions inventories, monitoring, and modeling to assure attainment 
and maintenance of the standards.'' \8\ As further identification of 
these basic structural SIP requirements, ``attachment A'' to the 
guidance document included a short description of the various elements 
of section 110(a)(2) and additional information about the types of 
issues that EPA considered germane in the context of such 
infrastructure SIPs. EPA emphasized that the description of the basic 
requirements listed on attachment A was not intended ``to constitute an 
interpretation of'' the requirements, and was merely a ``brief 
description of the required elements.'' \9\ EPA also stated its belief 
that with one exception, these requirements were ``relatively self 
explanatory, and past experience with SIPs for other NAAQS should 
enable States to meet these requirements with assistance from EPA 
Regions.'' \10\ For the one exception to that general assumption, 
however, i.e., how states should proceed with respect to the 
requirements of section 110(a)(2)(G) for the 1997 PM2.5 
NAAQS, EPA gave much more specific recommendations. But for other 
infrastructure SIP submittals, and for certain elements of the 
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each 
State would work with its corresponding EPA regional office to refine 
the scope of a State's submittal based on an assessment of how the 
requirements of section 110(a)(2) should reasonably apply to the basic 
structure of the State's SIP for the NAAQS in question.
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    \7\ See, ``Guidance on SIP Elements Required Under Section 
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 
National Ambient Air Quality Standards,'' from William T. Harnett, 
Director Air Quality Policy Division, to Air Division Directors, 
Regions I-X, dated October 2, 2007 (the ``2007 Guidance''). EPA 
issued comparable guidance for the 2006 PM2.5 NAAQS 
entitled ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2006 24-Hour Fine Particle 
(PM2.5) National Ambient Air Quality Standards (NAAQS),'' 
from William T. Harnett, Director Air Quality Policy Division, to 
Regional Air Division Directors, Regions I-X, dated September 25, 
2009 (the ``2009 Guidance'').
    \8\ Id., at page 2.
    \9\ Id., at attachment A, page 1.
    \10\ Id., at page 4. In retrospect, the concerns raised by 
commenters with respect to EPA's approach to some substantive issues 
indicates that the statute is not so ``self explanatory,'' and 
indeed is sufficiently ambiguous that EPA needs to interpret it in 
order to explain why these substantive issues do not need to be 
addressed in the context of infrastructure SIPs and may be addressed 
at other times and by other means.
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    Significantly, the 2007 Guidance did not explicitly refer to the 
SSM, director's discretion, minor source NSR, or NSR Reform issues as 
among specific substantive issues EPA expected states to address in the 
context of the infrastructure SIPs, nor did EPA give any more specific 
recommendations with respect to how states might address such issues 
even if they elected to do so. The SSM and director's discretion issues 
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform 
issues implicate section 110(a)(2)(C). In the 2007 Guidance, however, 
EPA did not indicate to states that it intended to interpret these 
provisions as requiring a substantive submission to address these 
specific issues in the context of the infrastructure SIPs for these 
NAAQS. Instead, EPA's 2007 Guidance merely indicated its belief that 
the states should make submissions in which they established that they 
have the basic SIP structure necessary to implement, maintain, and 
enforce the NAAQS. EPA believes that states can establish that they 
have the basic SIP structure, notwithstanding that there may be 
potential deficiencies within the existing SIP. Thus, EPA's proposals 
mentioned these issues not because the Agency considers them issues 
that must be addressed in the context of an infrastructure SIP as 
required by section 110(a)(1) and (2), but rather because EPA wanted to 
be clear that it considers these potential existing SIP problems as 
separate from the pending infrastructure SIP actions.
    EPA believes that this approach to the infrastructure SIP 
requirement is reasonable, because it would not be feasible to read 
section 110(a)(1) and (2) to require a top to bottom, stem to stern, 
review of each and every provision of an existing SIP merely for 
purposes of assuring that the state in question has the basic 
structural elements for a functioning SIP for a new or revised NAAQS. 
Because SIPs have grown by accretion over the decades as statutory and 
regulatory requirements under the CAA have evolved, they may include 
some outmoded provisions and historical artifacts that, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA considers the overall effectiveness of the 
SIP. To the contrary, EPA believes that a better approach is for EPA to 
determine which specific SIP elements from section 110(a)(2) are 
applicable to an infrastructure SIP for a given NAAQS, and to focus 
attention on those elements that are most likely to need a specific SIP 
revision in light of the new or revised NAAQS. Thus, for example, EPA's 
2007 Guidance specifically directed states to focus on the requirements 
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of 
the absence of underlying EPA regulations for emergency episodes for 
this NAAQS and an anticipated absence of relevant provisions in 
existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of 
section 110(a)(1) and (2) because the statute provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow the Agency to take appropriate 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP 
call'' whenever the Agency determines that a state's SIP is 
substantially inadequate to attain or maintain the NAAQS, to mitigate 
interstate transport, or otherwise to comply with the CAA.\11\ Section 
110(k)(6) authorizes EPA to correct

[[Page 42553]]

errors in past actions, such as past approvals of SIP submissions.\12\ 
Significantly, EPA's determination that an action on the infrastructure 
SIP is not the appropriate time and place to address all potential 
existing SIP problems does not preclude the Agency's subsequent 
reliance on provisions in section 110(a)(2) as part of the basis for 
action at a later time. For example, although it may not be appropriate 
to require a state to eliminate all existing inappropriate director's 
discretion provisions in the course of acting on the infrastructure 
SIP, EPA believes that section 110(a)(2)(A) may be among the statutory 
bases that the Agency cites in the course of addressing the issue in a 
subsequent action.\13\
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    \11\ EPA has recently issued a SIP call to rectify a specific 
SIP deficiency related to the SSM issue. See, ``Finding of 
Substantial Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revision,'' 74 FR 21639 (April 18, 2011).
    \12\ EPA has recently utilized this authority to correct errors 
in past actions on SIP submissions related to PSD programs. See, 
``Limitation of Approval of Prevention of Significant Deterioration 
Provisions Concerning Greenhouse Gas Emitting-Sources in State 
Implementation Plans; Final Rule,'' 75 FR 82536 (Dec. 30, 2010). EPA 
has previously used its authority under CAA 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 
34641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 
2004) (corrections to California SIP); and 74 FR 57051 (November 3, 
2009) (corrections to Arizona and Nevada SIPs).
    \13\ EPA has recently disapproved a SIP submission from Colorado 
on the grounds that it would have included a director's discretion 
provision inconsistent with CAA requirements, including section 
110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010) 
(proposed disapproval of director's discretion provisions); 76 FR 
4540 (January 26, 2011) (final disapproval of such provisions).
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III. What action is EPA taking?

    The EPA is approving the Louisiana SIP submittals that identify 
where and how the 14 basic infrastructure elements are in the EPA-
approved SIP as specified in section 110(a)(2) of the Act. We are 
determining that the following section 110(a)(2) elements are contained 
in the current Louisiana SIP: emission limits and other control 
measures (section 110(a)(2)(A)); ambient air quality monitoring/data 
system (section 110(a)(2)(B)); program for enforcement of control 
measures (section 110(a)(2)(C)); international and interstate pollution 
abatement (section 110(a)(2)(D)(ii); adequate resources (section 
110(a)(2)(E)); stationary source monitoring system (section 
110(a)(2)(F)); emergency power (section 110(a)(2)(G)); future SIP 
revisions (section 110(a)(2)(H)); consultation with government 
officials (section 110(a)(2)(J)); public notification (section 
110(a)(2)(J)); PSD and visibility protection (section 110(a)(2)(J)); 
air quality modeling/data (section 110(a)(2)(K)); permitting fees 
(section 110(a)(2)(L)); and consultation/participation by affected 
local entities (section 110(a)(2)(M)).
    In conjunction with our determination that the Louisiana SIP meets 
the section 110(a)(1) and (2) infrastructure SIP elements listed above, 
we are also approving four severable portions of two SIP revisions 
submitted by the LDEQ to EPA on December 20, 2005 and November 9, 2007. 
These portions contain rule revisions by LDEQ to (1) regulate 
NOX emissions in its PSD permit program as a precursor to 
ozone; (2) add NOX to the PSD definitions for Major 
Modification and Major Stationary Source; 3) under the PSD definition 
for Significant, add the emission rate for NOX, as a 
precursor to ozone, as 40 tons per year (tpy); and 4) under the PSD 
requirements, allow for an exemption with respect to ambient air 
quality monitoring data for a source with a net emissions increase less 
than 100 tpy of NOX. At this time, EPA is not taking action 
on other portions of the December 20, 2005 and November 9, 2007 SIP 
revisions submitted by LDEQ; EPA intends to act on the other revisions 
at a later time.

IV. Comments

    We received one comment letter on the proposed rulemaking. The 
comment letter is available for review in the docket for this 
rulemaking. The comment letter came from the Tulane Environmental Law 
Clinic, on behalf of the Louisiana Environmental Action Network (LEAN, 
hereinafter referred to as ``the commenter'').
    Generally, the commenter's concerns relate to whether EPA's 
approval of Louisiana's infrastructure SIP submissions are in 
compliance with section 110(a)(2)(E) and 110(a)(2)(L) of the CAA, and 
whether EPA's approval is arbitrary and capricious in finding the State 
has provided necessary assurances in compliance with the CAA's adequate 
funding and personnel requirements. To the extent comments 1 through 4 
address adequate funding for Louisiana's Title V program with respect 
to elements 110(a)(2)(C), D(ii), (E), and (L), the commenter addresses 
issues that are subject to statutory and regulatory evaluation beyond 
the statutory scope of this rulemaking. Section 110(a)(2) falls under 
Title I of the CAA and governs the implementation, maintenance, and 
enforcement of the NAAQS, in this instance 1997 ozone and 1997 
PM2.5, through the federally approved SIP. Section 110 and 
40 CFR part 51 also provide mechanisms for programmatic remedies with 
respect to the SIP. Furthermore, Title I addresses Minor and Major New 
Source Review SIP preconstruction permits. The Title V program, by 
contrast, governs operating permits and is addressed by CAA sections 
502 through 507. Any evaluation of the Title V program and any 
consequent programmatic remedies must be done pursuant to CAA section 
502 and 40 CFR part 70. The scope of this action is limited to 
determining whether the Louisiana SIP meets certain infrastructure 
requirements of CAA 110(a)(2) with respect to the 1997 ozone and 1997 
PM2.5 NAAQS.\14\ A summary of the comments and EPA's 
responses are provided below.
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    \14\ Region 6 intends to evaluate Louisiana's Title V program in 
fiscal year 2012, pursuant to the statutory and regulatory procedure 
in CAA section 502 and 40 CFR part 70 that are separate from the 
procedures in CAA section 110 and 40 CFR part 51. This evaluation 
would be outside the programmatic scope of section 110 and 40 CFR 
part 51 evaluated here.
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    Comment 1: The commenter states that because the record contains no 
evidence of adequate funding, EPA cannot approve Louisiana's 
infrastructure SIP. The commenter also states that EPA's approval of 
various Title I and Title V revisions to Louisiana's permit fee system 
is more than 15 years out of date and therefore cannot support a 
finding that Louisiana has adequate personnel and funding to carry out 
its program today. The commenter also states that Louisiana's fee 
average is less than the presumptive minimum set out by Title V of the 
CAA under section 502(b)(3)(B)(i) and (v). The commenter further states 
that it would be unlawful for EPA to approve Louisiana's infrastructure 
SIP submissions without specifically considering LDEQ's annual reviews 
of their Fee Schedule as required by the Louisiana Administrative Code. 
The commenter also states that EPA cannot lawfully conclude Louisiana 
can adequately implement its program for less than half of EPA's 
presumptive fee based on the record which does not include Louisiana's 
annual reviews of their fees.
    Response: We disagree with the commenter's statement that the 
record contains no evidence of adequate funding. Our TSD was posted in 
the docket for this rulemaking on April 18, 2011, which is the date the 
rulemaking was published in the Federal Register. The TSD evaluates 
where and how the Louisiana SIP addresses each of the section 110(a)(2) 
infrastructure elements, including 110(a)(2)(E), which begins on page 
12 of the TSD. Within the TSD section evaluating 110(a)(2)(E), we 
include the various funds the state

[[Page 42554]]

receives to support the 1997 ozone and 1997 PM2.5 NAAQS.
    Section 110(a)(2)(E) requires that the state provide necessary 
assurances that it will have adequate funding under state law to carry 
out the SIP. As cited in our TSD, to address adequate funding, 
Louisiana statute charges the LDEQ with preparing and developing the 
SIP, and provides the secretary of the LDEQ with the powers and duties 
to `` * * * receive and budget duly appropriated monies and to accept, 
receive, and administer grants or other funds or gifts from public and 
private agencies, including the federal government, to carry out the 
provisions and purposes of this Subtitle'' (LA RS 30:2011.D.10). As 
cited in our TSD, these state statute-assured funds are supplemented by 
federal funds, including CAA section 103 and section 105 grants. 
Consequently, there are additional monetary sources, including 
Louisiana's Environmental Trust Fund monies provided for under LA RS 
30:2015, which contribute to Louisiana's ability to provide adequate 
personnel and funding to implement the SIP for the 1997 ozone and 1997 
PM2.5 NAAQS.
    Funding necessary to implement the SIP, as discussed prior in this 
Response and in the TSD, is provided for pursuant to section 
110(a)(2)(E) by Louisiana state statute and various sources of funding. 
While Louisiana's various permitting fee system and revisions were 
approved into the SIP over a decade ago, the rules approved into the 
Louisiana SIP continue today to mandate Major and Minor NSR SIP 
preconstruction permitting application and annual maintenance fees 
pursuant to section 110(a)(2)(E) and (L). EPA's previous SIP approvals, 
as contained within the record and cited to by the commenter, include 
required fees as described by 110(a)(2)(E) and (L).
    The presumptive $25.00 fee minimum under CAA section 502(b)(3) the 
commenter refers to is part of Title V, which as previously stated in 
Section IV, second paragraph, is subject to evaluation under different 
statutory and regulatory mechanisms provided for outside the SIP 
parameters for evaluation and remedies under CAA section 110 and 40 CFR 
part 51.
    Section 110(a)(2) does not require a specific quantitative metric 
or methodology for determining adequate resources. The commenter also 
did not point to specific program deficiencies or implementation issues 
due to the perceived lack of resources. As described in our proposal, 
TSD, and previously in this response, EPA's evaluation and approval of 
Louisiana's fee system and resources is based, in part, upon various 
sources of funding, state statutes and rules pursuant to section 
110(a)(2), and LDEQ's fulfillment of grant obligations. As explained in 
the TSD, section 105 grants provide monies to help support the 
foundation of the State's air quality program, including air 
monitoring, enforcement and SIP development. States are required to 
provide matching monies to receive their grant and EPA evaluates the 
performance of the State each year. In fiscal year 2010, Louisiana 
successfully completed all of their air program obligations as called 
for under the section 105 grant with some minor exceptions.\15\ EPA 
noted no significant deficiencies thus indicating that LDEQ has 
sufficient resources to implement its SIP. For example, as described in 
our proposal and TSD, apart from the grant review, Louisiana's 
statewide air quality surveillance network as required by section 
110(a)(2)(B) undergoes annual review and EPA's most recent approval of 
this monitoring network dates January 12, 2011. Therefore, we disagree 
that the record does not support a finding of adequate resources. The 
fact that the fee requirement that provides the basis for some of these 
resources was approved by EPA some time ago does not change this 
conclusion.
---------------------------------------------------------------------------

    \15\ See Supplemental TSD for the LDEQ 2010 Air Program End-of-
Year Report, in the docket for this rulemaking.
---------------------------------------------------------------------------

    Furthermore, we disagree with the commenter's statement that the 
record does not support a finding of adequate resources solely because 
the annual fee review is absent from the record. In response to the 
commenter's concerns, LDEQ explained their fee review process and 
stated that the fee review is conducted as part of the budget process 
and essentially insures that sufficient fees are collected to pay for 
the staff associated with new source review permitting.\16\ Though 
evaluation of the annual fee review was not part of the proposal for 
this action, EPA's evaluation and approval of Louisiana's fee system 
and resources under sections 110(a)(2)(L) and 110(a)(2)(E) is based, in 
part, upon various sources of funding, state statutes and rules 
pursuant to section 110(a)(2), and LDEQ's fulfillment of grant 
obligations as described in the proposal, TSD, the supplemental TSD, 
and this response. In addition, on September 9, 2010, the EPA 
determined that the Baton Rouge moderate 8-hour ozone nonattainment 
area (BRNA) had attained the 1997 8-hour ozone NAAQS (75 FR 54778). On 
August 31, 2010, the state submitted a request to EPA to redesignate 
the BRNA to attainment and EPA is reviewing that submission in a 
separate action. This submission was not statutorily required under the 
Act and was resource intensive for the LDEQ. This exercise provides 
additional support that the state has adequate resources to comply with 
the enforceable emission limitations and other control measures 
requirement of 110(a)(2)(A).
---------------------------------------------------------------------------

    \16\ Per communication with Bryan Johnston, LDEQ, dated June 27, 
2011; see the Supplemental TSD.
---------------------------------------------------------------------------

    In sum, the record does support a finding of adequate resources. As 
discussed in the record for this action, the State has the statutory 
authority to receive monies. The State does, in fact, collect various 
fees, revenues and federal grants. Section 110 does not provide a 
specific methodology for determining the adequacy of resources. The 
commenter does not specify deficiencies or implementation problems. Our 
reasons for finding that the Louisiana SIP meets section 110(a)(2)(E) 
for adequate resources for the 1997 ozone and 1997 PM2.5 
NAAQS are reiterated in our response above, and described in the 
proposed rulemaking (76 FR 21682) and the TSD. The fact that the fee 
requirement that provides for some of these resources was approved some 
time ago does not change this conclusion.\17\ Insofar as the commenter 
states EPA cannot lawfully conclude LDEQ can adequately implement its 
program for less than half of EPA's presumptive fee, the presumptive 
fee the commenter is referring to is the Title V presumptive fee. 
Evaluation of this presumptive fee minimum must be conducted under 
different statutory and regulatory mechanisms provided for outside the 
SIP parameters for evaluation and remedies under CAA section 110 and 40 
CFR part 51.
---------------------------------------------------------------------------

    \17\ See Supplemental TSD for revisions to the Fee System of the 
Louisiana Air Quality Control Programs submitted by Bryan Johnston, 
LDEQ. These revisions were not submitted to EPA for approval into 
the SIP.
---------------------------------------------------------------------------

    Comment 2: Inflation alone shows that EPA cannot rely on its 1995 
approval.
    Response: The 1995 approval the commenter refers to is found at 60 
FR 47296, and was approved pursuant to section 502(b)(3) of the Act and 
40 CFR 70.9, the regulations implementing Title V. Title V is not part 
of the federally approved SIP, and as previously explained in this 
rulemaking, the mechanism for evaluating the Title V program is legally 
outside the scope of this rulemaking. The scope of this action is 
limited to determining whether the existing Louisiana SIP meets certain

[[Page 42555]]

infrastructure requirements of CAA 110(a)(2) with respect to the 1997 
ozone and 1997 PM2.5 NAAQS.
    Comment 3: Louisiana's program will need increased resources to 
achieve attainment in expanded sulfur dioxide (SO2) and 
NOX non-attainment areas.
    Response: The scope of this action is limited to determining 
whether the Louisiana SIP meets the requirements of CAA 110(a)(2) with 
respect to the 1997 ozone and 1997 PM2.5 NAAQS in attainment 
areas. We will evaluate whether or not the Louisiana SIP meets the 
requirements of section 110(a)(2) with respect to the SO2 
and NO2 standards in one or more separate rulemaking 
actions.\18\
---------------------------------------------------------------------------

    \18\ The commenter incorrectly refers to a ``NOX 
standard.'' EPA assumes the commenter is referring to the 
NO2 standard announced on February 9, 2010 (75 FR 6474).
---------------------------------------------------------------------------

    Comment 4: EPA's proposed approval ignores a 2002 audit report by 
the EPA's Inspector General, which concluded that Louisiana's average 
fee of $19.00 per ton is well below the EPA-determined presumptive 
minimum amount of $35.00 to adequately run a state Title V program.
    Response: The audit report referred to by the commenter wholly 
addresses the Louisiana Title V program and thus is outside the legal 
parameters of evaluating the Louisiana SIP in meeting the requirements 
of section 110(a)(2) of the Act with respect to the 1997 ozone and 1997 
PM2.5 NAAQS. Any evaluation of the Title V program must be 
done pursuant to the procedural mechanisms in CAA section 502 and 40 
CFR part 70.
    Comment 5: The commenter states Louisiana's March 24, 2011 
(supplemental) certification letter does not list permitting fees as an 
area of compliance. EPA must evaluate the adequacy of LDEQ's plan, and 
there is nothing in the record to support a finding that LDEQ's 
resources are sufficient to run its program.
    Response: The March 24, 2011 letter from LDEQ was not intended to 
replace the December 11, 2007 and January 7, 2008 certification 
letters, and the March 2011 letter states that it clarifies and amends 
the prior two certifications. In its January 7, 2008 certification 
submitted to EPA, Louisiana listed permitting fees as an area of 
compliance. We therefore disagree with the commenter that the State did 
not certify Major and Minor NSR SIP preconstruction permitting fees as 
an area of compliance. EPA evaluated the Louisiana SIP in the April 18, 
2011 proposal and TSD, and this evaluation is based on the two 
certification letters submitted by the state, dated December 11, 2007 
and January 7, 2008, and the supplemental certification letter dated 
March 24, 2011.
    Major and Minor NSR SIP preconstruction permitting application and 
annual maintenance fees and adequate resources sufficient to implement 
the Louisiana SIP pursuant to sections 110(a)(2)(E) and 110(a)(2)(L) 
are provided for under the EPA-approved SIP, state statute, and 
augmented by other sources of funding as described in EPA's Response to 
Comment 1 of this final action and in the TSD.
    The commenter does not specify where Louisiana might be failing to 
implement any portions of the 1997 ozone and 1997 PM2.5 
NAAQS SIP, thus we have no specific basis of evaluation or point of 
reference to evince support of the commenter's allegations of 
inadequate resources with regards to Louisiana's SIP. Our reasons for 
finding that the Louisiana SIP meets section 110(a)(2)(E) for adequate 
resources for the 1997 ozone and 1997 PM2.5 NAAQS are 
reiterated in our response above,\19\ and described in the proposed 
rulemaking (76 FR 21682) and the TSD.
---------------------------------------------------------------------------

    \19\ Response to Comment 1.
---------------------------------------------------------------------------

V. Final Action

    We are approving the submittals provided by the State of Louisiana 
to demonstrate that the Louisiana SIP meets the following requirements 
of Section 110(a)(1) and (2) of the Act:
    Emission limits and other control measures (110(a)(2)(A) of the 
Act);
    Ambient air quality monitoring/data system (110(a)(2)(B) of the 
Act);
    Program for enforcement of control measures (110(a)(2)(C) of the 
Act);
    Interstate Transport (110(a)(2)(D)(ii) of the Act);
    Adequate resources (110(a)(2)(E) of the Act);
    Stationary source monitoring system (110(a)(2)(F) of the Act);
    Emergency power (110(a)(2)(G) of the Act);
    Future SIP revisions (110(a)(2)(H) of the Act);
    Consultation with government officials (110(a)(2)(J) of the Act);
    Public notification (110(a)(2)(J) of the Act);
    Prevention of significant deterioration and visibility protection 
(110(a)(2)(J) of the Act);
    Air quality modeling data (110(a)(2)(K) of the Act);
    Permitting fees (110(a)(2)(L) of the Act); and
    Consultation/participation by affected local entities (110(a)(2)(M) 
of the Act).
    EPA is also approving the following revisions to 33 LAC 5-509, 
submitted by LDEQ on December 20, 2005 and November 9, 2007:
    1. The 2005 non-substantive recodification of the definition for 
Major Modification subsection 2 to subsection b, and the 2007 
substantive change adding NOX to the definition of Major 
Modification.
    2. The 2005 non-substantive recodification at of the definition for 
Major Stationary Source at subsection 4 to subsection d, and the 2007 
substantive change adding NOX to the definition of Major 
Stationary Source.
    3. The 2005 non-substantive recodification of the first paragraph 
of the definition for Significant at subsection 1 to subsection a, and 
the 2007 substantive change adding NOX as a precursor to the 
table's criteria and other pollutants listing for ozone.
    4. The 2005 non-substantive recodification of the first paragraph 
of subsection I.8 to subsection I.5, and the 2007 substantive change 
allowing for an exemption with respect to ozone monitoring for a source 
with a net emissions increase less than 100 tpy of NOX.

EPA is approving these actions in accordance with section 110 of the 
Act and EPA's regulations and consistent with EPA guidance.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);

[[Page 42556]]

     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, 
this rule does not have tribal implications as specified by Executive 
Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not 
approved to apply in Indian country located in the state, and EPA notes 
that it will not impose substantial direct costs on tribal governments 
or preempt tribal law.
    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 September 19, 2011. 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, Nitrogen dioxides, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: June 30, 2011.
Al Armendariz,
Regional Administrator, Region 6.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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 is amended:
0
a. In paragraph (c) by revising the entry for Section 509 under 
``Chapter 5 Permit Procedures''.
0
b. In paragraph (e) by adding a new entry for ``Infrastructure for the 
1997 Ozone and 1997 PM2.5 NAAQS'' at the end of the second 
table in paragraph (e) entitled ``EPA Approved Louisiana Nonregulatory 
Provisions and Quasi-Regulatory Measures''.
    The amendments read as follows:


Sec.  52.970  Identification of plan.

* * * * *
    (c) * * *

                                                 EPA Approved Louisiana Regulations in the Louisiana SIP
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         State approval
             State citation                      Title/subject                date          EPA approval date                   Comments
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Section 509.............................  Prevention of Significant             2/20/1995         10/15/1996,  The following revisions approved by the
                                           Deterioration.                                         61 FR 53639   State on 12/20/2005 and 9/20/2006 are
                                                                                                                EPA approved on 7/19/2011, [Insert FR
                                                                                                                page number where document begins]:
                                                                                                               (a) Section 509(B)--Only the revisions to
                                                                                                                recodify and add NOX to the definitions
                                                                                                                of Major Modification and Major
                                                                                                                Stationary Source; and only the
                                                                                                                revisions to recodify and add NOX as a
                                                                                                                precursor to the definition of
                                                                                                                Significant;
                                                                                                               (b) Section 509(I)--Only the revisions to
                                                                                                                the table under I.5(a).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
    (e) * * *
* * * * *

[[Page 42557]]



                  EPA Approved Louisiana Nonregulatory Provisions and Quasi-Regulatory Measures
----------------------------------------------------------------------------------------------------------------
                                       Applicable       State submittal
      Name of SIP provision          geographic or      date/effective    EPA approval date       Explanation
                                   nonattainment area        date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Infrastructure for the 1997       Statewide..........        12/11/2007  7/19/2011, [Insert   Approval for CAA
 Ozone and 1997 PM2.5 NAAQS.                                   1/7/2008   FR page number       sections
                                                              3/24/2011   where document       110(a)(2)(A),
                                                                          begins].             (B), (C),
                                                                                               (D)(ii), (E),
                                                                                               (F), (G), (H),
                                                                                               (J), (K), (L),
                                                                                               and (M).
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2011-18061 Filed 7-18-11; 8:45 am]
BILLING CODE 6560-50-P