
[Federal Register Volume 77, Number 150 (Friday, August 3, 2012)]
[Proposed Rules]
[Pages 46361-46371]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-19015]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2011-0047; FRL-9707-3]


Partial Approval and Disapproval of Air Quality Implementation 
Plans; Nevada; Infrastructure Requirements for Ozone and Fine 
Particulate Matter

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing to partially approve and partially disapprove 
State Implementation Plan (SIP) revisions submitted by the State of 
Nevada to address the requirements of section 110(a)(1) and 110(a)(2) 
of the Clean Air Act (CAA) for the 1997 8-hour ozone national ambient 
air quality standards (NAAQS) and the 1997 and 2006 NAAQS for fine 
particulate matter (PM2.5). Section 110(a) of the CAA 
requires that each State adopt and submit a SIP for the implementation, 
maintenance, and enforcement of each NAAQS promulgated by the EPA. On 
February 1, 2008, February 26, 2008, September 15, 2009, and December 
4, 2009 the Nevada Division of Environmental Protection (NDEP) 
submitted revisions to Nevada's SIP, which describe the State's 
provisions for implementing, maintaining, and enforcing the standards 
listed above. On July 5, 2012, NDEP submitted a supplement to these SIP 
revisions, including certain statutory and regulatory provisions. We 
encourage the State to submit a revised SIP to address the deficiencies 
identified in this proposal, and we stand ready to work with the State 
to develop a revised plan. We are taking comments on this proposal and 
plan to follow with a final action.

DATES: Written comments must be received on or before September 4, 
2012.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R09-OAR-2011-0047, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: r9_airplanning@epa.gov.
    3. Fax: 415-947-3579.
    4. Mail or deliver: Rory Mays (AIR-2), U.S. Environmental 
Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 
94105-3901. Deliveries are only accepted during the Regional Office's 
normal hours of operation.
    Instructions: All comments will be included in the public docket 
without

[[Page 46362]]

change and may be made available online at http://www.regulations.gov, 
including any personal information provided, unless the comment 
includes Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Information that you 
consider CBI or otherwise protected should be clearly identified as 
such and should not be submitted through http://www.regulations.gov or 
email. http://www.regulations.gov is an anonymous access system, and 
EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send email directly to 
EPA, your email address will be automatically captured and included as 
part of the public comment. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment.
    Docket: Generally, documents in the docket for this action are 
available electronically at www.regulations.gov and in hard copy at EPA 
Region IX, 75 Hawthorne Street, San Francisco, California. While all 
documents in the docket are listed at www.regulations.gov, some 
information may be publicly available only at the hard copy location 
(e.g., copyrighted material, large maps), and some may not be publicly 
available in either location (e.g., CBI). To inspect the hard copy 
materials, please schedule an appointment during normal business hours 
with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Rory Mays, Air Planning Office (AIR-
2), U.S. Environmental Protection Agency, Region IX, (415) 972-3227, 
mays.rory@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,'' 
``us,'' and ``our'' refer to EPA.

Table of Contents

I. Background
    A. Statutory Framework
    B. Regulatory History
    C. Scope of the Infrastructure SIP Evaluation
II. The State's Submittals
III. EPA's Evaluation and Proposed Action
    A. Proposed Approvals
    B. Proposed Disapprovals
    C. Alternative Proposed Disapprovals (Parallel Processing)
    D. Alternative Proposed Disapprovals (Clark County NSR)
    E. Discussion of CAA SIP Revision Requirements
    F. Consequences of Proposed Disapprovals
IV. Statutory and Executive Order Reviews

I. Background

I.A. Statutory Framework

    Section 110(a)(1) of the CAA requires each state to submit to EPA, 
within 3 years (or such shorter period as the Administrator may 
prescribe) after the promulgation of a primary or secondary NAAQS or 
any revision thereof, a SIP that provides for the ``implementation, 
maintenance, and enforcement'' of such NAAQS. EPA refers to these 
specific submissions as ``infrastructure'' SIPs because they are 
intended to address basic structural SIP requirements for new or 
revised NAAQS. The infrastructure SIP elements include:
     Section 110(a)(2)(A): Emission limits and other control 
measures.
     Section 110(a)(2)(B): Ambient air quality monitoring/data 
system.
     Section 110(a)(2)(C): Program for enforcement of control 
measures and regulation of new and modified stationary sources.
     Section 110(a)(2)(D)(i): Interstate pollution transport.
     Section 110(a)(2)(D)(ii): Interstate and international 
pollution abatement.
     Section 110(a)(2)(E): Adequate resources and authority, 
conflict of interest, and oversight of local and regional government 
agencies.
     Section 110(a)(2)(F): Stationary source monitoring and 
reporting.
     Section 110(a)(2)(G): Emergency episodes.
     Section 110(a)(2)(H): SIP revisions.
     Section 110(a)(2)(J): Consultation with government 
officials, public notification, and prevention of significant 
deterioration (PSD) and visibility protection.
     Section 110(a)(2)(K): Air quality modeling and submission 
of modeling data.
     Section 110(a)(2)(L): Permitting fees.
     Section 110(a)(2)(M): Consultation/participation by 
affected local entities.
    Two elements identified in section 110(a)(2) are not governed by 
the three-year submission deadline of section 110(a)(1) and are 
therefore not addressed in this action. These elements relate to part D 
of title I of the CAA, and submissions to satisfy them are not due 
within three years after promulgation of a new or revised NAAQS, but 
rather are due at the same time nonattainment area plan requirements 
are due under section 172. The two elements are: (i) Section 
110(a)(2)(C) to the extent it refers to permit programs required under 
part D (nonattainment New Source Review (NSR)), and (ii) section 
110(a)(2)(I), pertaining to the nonattainment planning requirements of 
part D. As a result, this action does not address infrastructure 
elements related to the nonattainment NSR portion of section 
110(a)(2)(C) or related to 110(a)(2)(I).

I.B. Regulatory History

    On July 18, 1997, EPA issued a revised NAAQS for ozone \1\ and a 
new NAAQS for fine particulate matter (PM2.5).\2\ EPA 
subsequently revised the 24-hour PM2.5 NAAQS on September 
21, 2006.\3\ Each of these actions triggered a requirement for states 
to submit an infrastructure SIP to address the applicable requirements 
of section 110(a)(2) within three years of issuance of the new or 
revised NAAQS.
---------------------------------------------------------------------------

    \1\ The 8-hour averaging period replaced the previous 1-hour 
averaging period, and the level of the NAAQS was changed from 0.12 
parts per million (ppm) to 0.08 ppm (62 FR 38856).
    \2\ The annual PM2.5 standard was set at 15 
micrograms per cubic meter ([mu]g/m\3\), based on the 3-year average 
of annual arithmetic mean PM2.5 concentrations from 
single or multiple community-oriented monitors and the 24-hour 
PM2.5 standard was set at 65 [micro]g/m\3\, based on the 
3-year average of the 98th percentile of 24-hour PM2.5 
concentrations at each population-oriented monitor within an area 
(62 FR 38652).
    \3\ The final rule revising the 24-hour NAAQS for 
PM2.5 from 65 [micro]g/m\3\ to 35 [micro]g/m\3\ was 
published in the Federal Register on October 17, 2006 (71 FR 61144).
---------------------------------------------------------------------------

    On March 10, 2005, EPA entered into a Consent Decree with 
EarthJustice that obligated EPA to make official findings in accordance 
with section 110(k)(1) of the CAA as to whether states had made 
required complete SIP submissions, pursuant to sections 110(a)(1) and 
110(a)(2), by December 15, 2007 for the 1997 8-hour ozone NAAQS and by 
October 5, 2008 for the 1997 PM2.5 NAAQS. EPA made such 
findings for the 1997 ozone NAAQS, as published on March 27, 2008 (73 
FR 16205), and for the 1997 PM2.5 NAAQS, as published on 
October 22, 2008 (73 FR 62902). For the 1997 ozone NAAQS, EPA found 
that Nevada had failed to make a complete submittal to address the 
requirements of section 110(a)(2).\4\ For the 1997 PM2.5 
NAAQS, EPA found that Nevada had made a complete submittal to address 
the requirements of section 110(a)(2).
---------------------------------------------------------------------------

    \4\ Notwithstanding EPA's finding of failure to submit, footnote 
2 of the findings notice noted that Nevada had submitted its 
infrastructure SIP for the 1997 ozone NAAQS on February 1, 2008. 
(See 73 FR 16205 at 16207).
---------------------------------------------------------------------------

I.C. Scope of the Infrastructure SIP Evaluation

    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

[[Page 46363]]

of acting on those infrastructure SIP submissions.\5\ Those commenters 
specifically raised concerns involving provisions in existing SIPs and 
with EPA's statements in other proposals 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 in other proposals 
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 
believes that its statements in various proposed actions on 
infrastructure SIPs with respect to these four individual issues should 
be explained in greater depth.
---------------------------------------------------------------------------

    \5\ 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 intended the statements in other 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 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 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 issues 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 in those other proposals, 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 from actions on infrastructure SIP submissions.
    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.\6\ 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.\7\
---------------------------------------------------------------------------

    \6\ 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.
    \7\ 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 25,162 
(May 12, 2005)(defining, among other things, the phrase ``contribute 
significantly to nonattainment'').
---------------------------------------------------------------------------

    Notwithstanding that section 110(a)(2) provides 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).\8\ This illustrates that 
EPA must determine which provisions of section 110(a)(2) may be 
applicable for a given infrastructure SIP submission. Likewise, 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.\9\ Finally, EPA

[[Page 46364]]

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.\10\
---------------------------------------------------------------------------

    \8\ See, e.g., Id., 70 FR 25,162, at 63-65 (May 12, 2005) 
(explaining relationship between timing requirement of section 
110(a)(2)(D) versus section 110(a)(2)(I)).
    \9\ For example, EPA issued separate guidance to states with 
respect to SIP submissions to meet section 110(a)(2)(D)(i) for the 
1997 8-hour 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. In addition, EPA bifurcated the action on these ``interstate 
transport'' provisions within section 110(a)(2) and in most 
instances, substantive administrative actions occurred on different 
tracks with different schedules.
    \10\ 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.
---------------------------------------------------------------------------

    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 requirements 
applicable in attainment areas. Nonattainment SIPs required by part D 
also would not need 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 ozone and PM2.5 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.\11\ 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.'' \12\ 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.'' \13\ 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.'' \14\ 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.
---------------------------------------------------------------------------

    \11\ 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'').
    \12\ Id. at page 2.
    \13\ Id. at attachment A, page 1.
    \14\ Id. at page 4. In retrospect, the concerns raised by 
commenters with respect to EPA's approach to some substantive issues 
indicate 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.
---------------------------------------------------------------------------

    On September 25, 2009, EPA issued guidance to make recommendations 
to states with respect to the infrastructure SIPs for the 2006 
PM2.5 NAAQS.\15\ In the 2009 Guidance, EPA addressed a 
number of additional issues that were not germane to the infrastructure 
SIPs for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, but 
were germane to these SIP submissions for the 2006 PM2.5 
NAAQS. Significantly, neither the 2007 Guidance nor the 2009 Guidance 
explicitly referred 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 and the 2009 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 existing SIP provisions 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.
---------------------------------------------------------------------------

    \15\ See, ``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'').
---------------------------------------------------------------------------

    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 comprehensive 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

[[Page 46365]]

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.\16\ Section 
110(k)(6) authorizes EPA to correct errors in past actions, such as 
past approvals of SIP submissions.\17\ 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.\18\
---------------------------------------------------------------------------

    \16\ 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,'' 76 FR 21,639 (April 18, 2011).
    \17\ 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 82,536 (December 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 38,664 (July 25, 1996) and 
62 FR 34,641 (June 27, 1997) (corrections to American Samoa, 
Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67,062 
(November 16, 2004) (corrections to California SIP); and 74 FR 
57,051 (November 3, 2009) (corrections to Arizona and Nevada SIPs).
    \18\ 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 42,342 at 42,344 (July 21, 2010) 
(proposed disapproval of director's discretion provisions); 76 FR 
4,540 (January 26, 2011) (final disapproval of such provisions).
---------------------------------------------------------------------------

II. The State's Submittals

    On February 1, 2008, the Nevada Division of Environmental 
Protection (NDEP) submitted the ``CAA 110(a)(2)(A)-(M) Requirements in 
the Current Nevada State Implementation Plan (SIP) for 8-Hour Ozone'' 
to address the infrastructure SIP requirements for the 1997 ozone NAAQS 
(``2008 Ozone Submittal'').\19\ On February 26, 2008, NDEP submitted 
the ``CAA 110(a)(2)(A)-(M) Requirements in the Current Nevada State 
Implementation Plan (SIP) for PM2.5'' to address the 
infrastructure SIP requirements for the 1997 PM2.5 NAAQS 
(``2008 PM2.5 Submittal'').\20\ On September 15, 2009, NDEP 
submitted the ``CAA 110(a)(2)(A)-(M) Requirements in the Current Nevada 
State Implementation Plan (SIP) for PM2.5'' to address the 
infrastructure SIP requirements for the 2006 PM2.5 NAAQS 
(``2009 PM2.5 Submittal'').\21\ Each of these three 
submittals included a cover letter from the NDEP Administrator to the 
Region IX Regional Administrator, a table listing the elements of CAA 
section 110(a)(2) followed by NDEP's discussion of the provisions in 
the existing Nevada SIP that address each element, and attachments that 
compile the State rules and statutes that are currently approved into 
the Nevada SIP.
---------------------------------------------------------------------------

    \19\ See letter dated February 1, 2008 from Leo M. Drozdoff, 
Administrator, NDEP, to Wayne Nastri, Regional Administrator, EPA 
Region 9.
    \20\ See letter dated February 26, 2008 from Leo M. Drozdoff, 
Administrator, NDEP, to Wayne Nastri, Regional Administrator, EPA 
Region 9.
    \21\ See letter dated September 15, 2009 from Leo M. Drozdoff, 
Administrator, NDEP, to Laura Yoshii, Acting Regional Administrator, 
EPA Region 9.
---------------------------------------------------------------------------

    On December 4, 2009, NDEP submitted the ``Current CAA 110(a)(2)(A)-
(M) Requirements in the Washoe County Portion of the Nevada 
PM2.5 SIP'' to address the infrastructure SIP requirements 
for the 2006 PM2.5 NAAQS for the Washoe County portion of 
the State (``2009 PM2.5 Supplement'').\22\ Like the three 
earlier submittals, the 2009 PM2.5 Supplement contained a 
table listing the elements of CAA section 110(a)(2) followed by Washoe 
County's discussion of the provisions in the existing (Washoe County 
portion of the) Nevada SIP that address each element, and attachments 
that include the Washoe County District Board of Health (DBOH) air 
pollution control regulations cited in the County's evaluation of the 
adequacy of the existing SIP for Washoe County in meeting the 
infrastructure SIP requirements for PM2.5,\23\ the PSD 
delegation agreement between the Washoe County District Health 
Department and EPA, and an Interlocal Agreement among the Washoe County 
District Board of Health, Washoe County, and the cities of Reno and 
Sparks concerning the Washoe County District Health Department.
---------------------------------------------------------------------------

    \22\ See letter dated December 4, 2009 from Leo M. Drozdoff, 
Administrator, NDEP, to Laura Yoshii, Acting Regional Administrator, 
EPA Region 9.
    \23\ A small number of Washoe County regulations included as 
attachment B to the 2009 PM2.5 Supplement have already 
been approved into the Nevada SIP (e.g., the emergency episode 
provisions); most have not been approved. However, we understand 
that the submittal of the Washoe County regulations in attachment B 
was for information purposes, and that the specific Washoe County 
regulations submitted for approval into the SIP include only those 
submitted as part of NDEP's submittal dated July 5, 2012. We also 
understand attachment C to have been submitted for information 
purposes.
---------------------------------------------------------------------------

    On July 5, 2012, NDEP submitted ``Revisions to Nevada's Clean Air 
Act Sec.  110(a)(2) State Implementation Plan Submittals; Parallel 
Processing Request'' to address certain infrastructure SIP requirements 
for the 1997 ozone, 1997 PM2.5, and 2006 PM2.5 
NAAQS (``2012 Submittal'').\24\ This submittal served as a supplement 
to the four prior ozone and PM2.5 infrastructure SIP 
submittals and was submitted under the parallel processing mechanism 
provided by 40 CFR part 51, appendix V, Section 2.3. The 2012 Submittal 
includes a number of provisions, including statutes, regulations, and 
non-regulatory provisions, that are currently effective under State law 
but that have not been adopted specifically for submittal to EPA as SIP 
revisions under CAA section 110. NDEP also included unofficial copies 
of these provisions with a request for ``parallel processing'' \25\ and 
stated

[[Page 46366]]

its intention to open a public comment period on July 13, 2012, provide 
opportunity for a public hearing on August 15, 2012, and to submit 
these provisions as a formal SIP submittal by the end of August 2012.
---------------------------------------------------------------------------

    \24\ See letter dated July 5, 2012 from Colleen Cripps, 
Administrator, NDEP, to Jared Blumenfeld, Regional Administrator, 
EPA Region 9. This SIP revision was also submitted to revise 
Nevada's infrastructure SIP submittal for the 2008 Lead (Pb) NAAQS, 
which was submitted on October 12, 2011. EPA will address the 
infrastructure SIP requirements for the 2008 Pb NAAQS in a separate 
rulemaking.
    \25\ Under EPA's ``parallel processing'' procedure, EPA proposes 
rulemaking action concurrently with the State's proposed rulemaking. 
If the State's proposed plan is changed, EPA will evaluate that 
subsequent change and may publish another notice of proposed 
rulemaking. If no significant change is made, EPA will publish a 
final rulemaking on the plan after responding to any submitted 
comments. Final rulemaking action by EPA will occur only after the 
plan has been fully adopted by Nevada and submitted formally to EPA 
for approval into the SIP. See 40 CFR part 51, appendix V, section 
2.3. We note that because NDEP's rulemaking process here is for 
purposes of adopting the 2012 Submittal as a SIP revision under CAA 
section 110, including existing statutes and regulations (without 
revision) and updating non-regulatory provisions, we do not expect 
any significant changes between the proposed and final plans.
---------------------------------------------------------------------------

    NDEP did not provide notice and an opportunity for public comment 
or hearing prior to adoption and submittal of the 2008 Ozone Submittal, 
the 2008 PM2.5 Submittal, the 2009 PM2.5 
Submittal, or the 2009 PM2.5 Supplement in reliance on EPA 
guidance that indicated that, where a State was simply certifying that 
the existing SIP met the infrastructure requirements with respect to 
the new or revised NAAQS, no public process was required. EPA's views 
on this matter have changed, and we now recognize submittals by States 
in response to the requirements of CAA section 110(a)(1) do represent 
SIP submittals, even if they simply certify the existing SIP as 
sufficient.
    As SIP revisions, such submittals require public notice, and 
opportunity for comment and hearing. We find, however, that, in this 
instance, because NDEP has provided notice, and opportunity to comment 
and hearing in connection with the 2012 Submittal, described above, and 
because NDEP's notice refers to the 2008 Ozone Submittal, the 2008 
PM2.5 Submittal, the 2009 PM2.5 Submittal, and 
the 2009 PM2.5 Supplement, in addition to the 2012 
Submittal, NDEP will have met the procedural requirements for public 
participation under CAA section 110(a)(2) and 40 CFR 51.102 for all 
five infrastructure SIP submittals on which we are proposing action 
today when NDEP submits the related documentation to us with the 2012 
Submittal.
    We are proposing to act on all five submittals since they 
collectively address the infrastructure SIP requirements for the 1997 
ozone, 1997 PM2.5, and 2006 PM2.5 NAAQS. We refer 
to them collectively herein as ``Nevada's Infrastructure SIP 
Submittals.''

III. EPA's Evaluation and Proposed Action

    EPA has evaluated Nevada's Infrastructure SIP Submittals and the 
existing provisions of the Nevada SIP for compliance with the CAA 
section 110(a) requirements for the 1997 ozone, 1997 PM2.5, 
and 2006 PM2.5 NAAQS. Our three Technical Support Documents 
(TSDs) contain more detailed evaluations and are available in the 
public docket for this rulemaking, which may be accessed online at 
http://www.regulations.gov, docket number EPA-R09-OAR-2011-0047. The 
three Technical Support Documents are as follows: (1) ``Overarching 
TSD'' for CAA sections 110(a)(2)(A) through (C), parts of (D) and (E), 
and (F) thru (M); (2) ``2006 PM2.5 Transport TSD'' for CAA 
section 110(a)(2)(D)(i)(I) for the 2006 PM2.5 NAAQS; and (3) 
``Section 128 TSD'' for CAA section 110(a)(2)(E)(ii), which addresses 
compliance with the conflict of interest requirements of CAA section 
128. All proposals below apply to our evaluation of Nevada's 
infrastructure SIPs for the 1997 ozone, 1997 PM2.5, and 2006 
PM2.5 NAAQS unless a specific distinction is made as to 
which of Nevada's five submittals or which of these three NAAQS a given 
proposal applies.

III.A. Proposed Approvals

    Based upon our evaluation as presented in the TSDs, EPA proposes to 
approve Nevada's Infrastructure SIP Submittals with respect to the 
following infrastructure SIP requirements:
     Section 110(a)(2)(A): Emission limits and other control 
measures.
     Section 110(a)(2)(B): Ambient air quality monitoring/data 
system.
     Section 110(a)(2)(C) (in part): Program for enforcement of 
control measures and regulation of new and modified stationary sources.
     Section 110(a)(2)(D)(i) (in part): Interstate pollution 
transport. (Please see our 2006 PM2.5 Transport TSD for our 
evaluation of Nevada's 2009 PM2.5 Submittal and 2009 
PM2.5 Supplement regarding interstate transport requirements 
of section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 
NAAQS.)
     Section 110(a)(2)(D)(ii) (in part): Interstate pollution 
abatement and international air pollution
     Section 110(a)(2)(E): Adequate resources and authority, 
conflict of interest, and oversight of local and regional government 
agencies. (Please see our Section 128 TSD for our evaluation of 
Nevada's Infrastructure SIP Submittals regarding the conflict of 
interest requirements of section 110(a)(2)(E)(ii).)
     Section 110(a)(2)(F) (in part): Stationary source 
monitoring and reporting.
     Section 110(a)(2)(G): Emergency episodes.
     Section 110(a)(2)(H): SIP revisions.
     Section 110(a)(2)(J) (in part): Consultation with 
government officials, public notification, and prevention of 
significant deterioration (PSD) and visibility protection.
     Section 110(a)(2)(K) (in part): Air quality modeling and 
submission of modeling data.
     Section 110(a)(2)(L): Permitting fees.
     Section 110(a)(2)(M): Consultation/participation by 
affected local entities.
    In connection with our proposed partial approval of Nevada's 
Infrastructure SIP Submittals, we are proposing to approve certain 
statutes, regulations, and other materials, that were included in the 
2009 PM2.5 Supplement and the 2012 Submittal to supplement 
the four earlier submittals.
    First, with respect to section 110(a)(2)(E)(i) (i.e., necessary 
assurances for adequate personnel, funding, and authority), EPA is 
proposing to approve an interlocal agreement among the Washoe County 
District Board of Health, Washoe County and the cities of Reno and 
Sparks concerning the Washoe County District Health Department, and a 
comprehensive revision to Section 12 (``Resources'') of the Nevada SIP. 
The interlocal agreement was submitted as attachment D to the 2009 
PM2.5 Supplement and the revision to Section 12 was 
submitted as attachment A to Nevada's 2012 Submittal. Nevada's revision 
to Section 12 (``Resources'') includes updated information concerning 
funding and personnel supporting the functions of the three air 
pollution control agencies administering CAA programs in Nevada: NDEP, 
Clark County Department of Air Quality, and Washoe County Health 
District's Air Quality Management Division (AQMD). If finalized as 
proposed, NDEP's 2012 revision to Section 12 will entirely replace the 
existing SIP version of Section 12, approved on May 31, 1972 (37 FR 
10842), in the Nevada SIP.
    Second, in connection with our proposed approval of Nevada's 
Infrastructure SIP Submittals with respect to section 110(a)(2)(E)(ii) 
(i.e., State board conflict of interest requirements under CAA section 
128), EPA is proposing to approve Nevada Revised Statutes (NRS) 
sections 232A.020, 281A.150, 281A.160, 281A.400, 281A.410, and 
281A.420, as provided in Attachment B of Nevada's 2012 Submittal, into 
the Nevada SIP.

[[Page 46367]]

    Third, in connection with our proposed approval of Nevada's 
Infrastructure SIP Submittals with respect to section 110(a)(2)(J) (in 
part) and (M), EPA is proposing to approve a comprehensive revision to 
Section 11 (``Intergovernmental Consultation'') of the Nevada SIP, 
which is included as Attachment D to Nevada's 2012 Submittal. Nevada's 
revision to Section 11 (``Intergovernmental Consultation'') includes 
updated information concerning consultation among the three air 
pollution control agencies administering CAA programs in Nevada (NDEP, 
Clark County Department of Air Quality, and Washoe County Health 
District's Air Quality Management Division) as well as regional 
planning and transportation agencies that also have certain air-
quality-planning-related responsibilities. If finalized as proposed, 
NDEP's 2012 revision to Section 11 will entirely replace the existing 
SIP version of Section 11, approved on May 31, 1972 (37 FR 10842), in 
the Nevada SIP.
    Nevada's 2012 revision to Section 11 (``Intergovernmental 
Consultation'') cites a number of statutes, two of which are included 
as exhibits to Section 11, NRS section 445B.503 (``Local air pollution 
control board in county whose population is 700,000 or more: 
Cooperation with regional planning coalition and regional 
transportation commission; prerequisites to adoption or amendment of 
plan, policy or program'') and NRS section 439.390 (``District board of 
health: Composition; qualifications of members''), that would be new to 
the SIP.\26\ We have reviewed them and find them acceptable and are 
proposing to approve them in connection with our proposed approval of 
the 2012 revised Section 11 of the Nevada SIP.\27\
---------------------------------------------------------------------------

    \26\ NDEP included, in attachment B of the 2012 Submittal, 
certain statutes for inclusion in the Nevada SIP in support of the 
Infrastructure SIP Submittals. While both NRS 445B.503 and NRS 
439.390 are included as exhibits to revised Section 11 
(``Intergovernmental Consultation''), only the former is included in 
attachment B to the 2012 Submittal. We have assumed that the absence 
of NRS 439.390 in attachment B was inadvertent, and that NDEP 
intends NRS 439.390 to be included in the Nevada SIP, but we request 
confirmation from NDEP on this matter.
    \27\ In the 2012 Submittal, NDEP also included an updated 
version of a statute that is also cited in the revised Section 11 
(``Intergovernmental Consultation'') but that is already approved 
into the SIP, NRS section 445B.500 (``Establishment and 
administration of program; contents of program; designation of air 
pollution control agency of county for purposes of federal act; 
powers and duties of local air pollution control board; notice of 
public hearings; delegation of authority to determine violations and 
levy administrative penalties; cities and smaller counties: 
regulation of certain electric plants prohibited''), approved at 71 
FR 51766 (August 31, 2006). We have reviewed the updated version of 
NRS 445B.500 and note that the only changes relative to the existing 
SIP version of NRS 445B.500 relate to hearing boards, hearing 
officers, and school districts and, thus, are administrative in 
nature. As such, we propose herein to approve the updated version of 
NRS 445B.500 that was included in attachment B to the 2012 Submittal 
as a revision to the Nevada SIP.
---------------------------------------------------------------------------

    Fourth, in connection with our proposed approval of Nevada's 
Infrastructure SIP Submittals with respect to section 110(a)(2)(F)(ii) 
and (F)(iii), we note that EPA has proposed to approve three Nevada 
Administrative Code (NAC) sections cited by NDEP in its 2012 Submittal, 
NAC sections 445B.315(3), 445B.3368, and 445B.346, in a separate 
rulemaking (see 77 FR 38557, June 28, 2012). While we believe that the 
three cited NAC sections are generally supportive of the requirements 
of sections 110(a)(2)(F)(ii) and 110(a)(2)(F)(iii), we believe that the 
existing Nevada SIP, even without the three cited NAC sections, is 
adequate to meet the requirements of sections 110(a)(2)(F)(ii) and 
110(a)(2)(F)(iii) with respect to sources under NDEP jurisdiction. See 
our Overarching TSD.
    Fifth and last, in connection with our proposed approval of 
Nevada's Infrastructure SIP Submittals with respect to section 
110(a)(2)(F), our proposed approval with respect to this element for 
the Washoe County portion of the SIP relies on final approval of four 
Washoe County rules, 030.218, 030.230, 030.235, and 030.970, that were 
included in the 2012 Submittal. We proposed approval of these four 
Washoe County rules in a separate rulemaking signed on July 19, 
2012.\28\
---------------------------------------------------------------------------

    \28\ A copy of our separate, concurrent proposal is available in 
the docket for this action and online at http://www.regulations.gov, 
docket number EPA-R09-OAR-2011-0047.
---------------------------------------------------------------------------

III.B. Proposed Disapprovals

    EPA proposes to disapprove Nevada's Infrastructure SIP Submittals 
with respect to the following infrastructure SIP requirements (details 
of the partial approvals and partial disapprovals are presented after 
this list):
     Section 110(a)(2)(C) (in part): Program for enforcement of 
control measures and regulation of new and modified stationary sources.
     Section 110(a)(2)(D)(i) (in part): Interstate pollution 
transport. (Please see our 2006 PM2.5 Transport TSD for our 
evaluation of Nevada's 2009 PM2.5 Submittal and 2009 
PM2.5 Supplement regarding interstate transport requirements 
of section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 
NAAQS.)
     Section 110(a)(2)(D)(ii) (in part): Interstate pollution 
abatement and international air pollution.
     Section 110(a)(2)(F) (in part): Stationary source 
monitoring and reporting.
     Section 110(a)(2)(J) (in part): Consultation with 
government officials, public notification, and prevention of 
significant deterioration (PSD) and visibility protection.
     Section 110(a)(2)(K) (in part): Air quality modeling and 
submission of modeling data.
    As explained more fully in our Overarching TSD, we are proposing to 
disapprove Nevada's Infrastructure SIP Submittals for the NDEP and 
Washoe County portions of the SIP with respect to the permitting-
related requirements of CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 
110(a)(2)(D)(ii), 110(a)(2)(J), and 110(a)(2)(K) because the Nevada SIP 
does not fully satisfy the statutory and regulatory requirements for 
Prevention of Significant Deterioration (PSD) permit programs under 
part C, title I of the Act. Both NDEP and Washoe County AQMD currently 
implement the Federal PSD program in 40 CFR 52.21 for all regulated NSR 
pollutants, pursuant to delegation agreements with EPA. See 40 CFR 
52.1485.\29\ Accordingly, although the Nevada SIP remains deficient 
with respect to PSD requirements in both the NDEP and Washoe County 
portions of the SIP, these deficiencies are adequately addressed in 
both areas by the Federal PSD program.
---------------------------------------------------------------------------

    \29\ EPA fully delegated the implementation of the Federal PSD 
programs to NDEP on October 19, 2004 (``Agreement for Delegation of 
the Federal Prevention of Significant Deterioration (PSD) Program by 
the United States Environmental Protection Agency, Region 9 to the 
Nevada Division of Environmental Protection''), as updated on 
September 15, 2011, and to Washoe County (March 13, 2008 
(``Agreement for Delegation of the Federal Prevention of Significant 
Deterioration (PSD) Program by the United States Environmental 
Protection Agency, Region 9 to the Washoe County District Health 
Department'').
---------------------------------------------------------------------------

    For Section 110(a)(2)(C), we propose to approve Nevada's 
Infrastructure SIP Submittals with respect to the requirement that the 
SIP include a program to provide for enforcement of the emissions 
limitations described in section 110(a)(2)(A). For the permitting-
related requirements of section 110(a)(2)(C), we propose to approve the 
Clark County portion of the SIP, contingent on finalizing our proposed 
approval of Clark County's SIP revisions for the review of new or 
modified stationary sources,\30\ and to disapprove the NDEP and Washoe 
County portions of the SIP, for the reasons discussed at

[[Page 46368]]

the start of section III.B of this notice and our Overarching TSD.
---------------------------------------------------------------------------

    \30\ See EPA's proposal signed on July 13, 2012, and included in 
the docket of this infrastructure SIP proposal.
---------------------------------------------------------------------------

    With respect to the requirements regarding interstate transport in 
CAA section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 
NAAQS, we propose to partially approve and partially disapprove 
Nevada's 2009 PM2.5 Submittal and 2009 PM2.5 
Supplement. We propose to partially disapprove the submission because 
it relies on irrelevant factors and lacks any technical analysis to 
support the State's conclusion with respect to interstate transport. We 
also propose to partially approve the submission, however, based on 
EPA's supplemental evaluation of relevant technical information, which 
supports a finding that emissions from Nevada do not significantly 
contribute to nonattainment or interfere with maintenance of the 2006 
24-hour PM2.5 NAAQS in any other state and that the existing 
Nevada SIP is, therefore, adequate to meet the requirements of CAA 
section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS. 
See our 2006 PM2.5 Transport TSD.
    For the 1997 8-hour ozone and 1997 PM2.5 NAAQS, EPA 
previously approved an interstate transport SIP submitted by Nevada as 
satisfying the requirements of CAA section 110(a)(D)(i)(I). See 72 FR 
41629 (July 31, 2007).
    For the requirement of CAA section 110(a)(2)(D)(i)(II) (regarding 
interference with other states' required measures to prevent 
significant deterioration of air quality), we propose to approve the 
Clark County portion of the SIP, and to disapprove the NDEP and Washoe 
County portions of the SIP, for the reasons discussed at the start of 
section III.B of this notice and our Overarching TSD. With respect to 
the requirement of CAA section 110(a)(2)(D)(i)(II) (regarding 
interference with other states' required measures to protect 
visibility), EPA previously approved Nevada's interstate transport SIP 
as satisfying this requirement for the 1997 ozone and 1997 
PM2.5 NAAQS as part of EPA's action on Nevada's Regional 
Haze SIP. See 77 FR 17334 at 17339 (March 26, 2012). For purposes of 
the 2006 PM2.5 NAAQS, we propose the same interpretations 
and conclusions that we proposed as part of EPA's proposed action on 
the Nevada Regional Haze SIP. See 76 FR 36450 at 36466, June 22, 2011. 
In other words, we propose to find that Nevada's SIP-approved Regional 
Haze Plan contains adequate provisions to protect visibility in other 
states, and therefore meets the visibility requirement of CAA section 
110(a)(2)(D)(II) for the 2006 PM2.5 NAAQS.\31\
---------------------------------------------------------------------------

    \31\ Section IV.G.7 of the June 22, 2011 Regional Haze SIP 
proposal (See 76 FR 36450 at 36466) stated the following: ``Section 
110(a)(2)(D)(i)(II) of the Act requires SIP revisions to contain 
adequate provisions to prohibit any source or other types of 
emission activity within the state from emitting any air pollutant 
in amounts that will interfere with another state's plan to protect 
visibility. Nevada submitted its SIP for Interstate Transport to EPA 
on February 7, 2007, which EPA approved and promulgated in the 
Federal Register on July 31, 2007 (70 FR 41629). In our Federal 
Register Notice, we deferred action on whether Nevada interferes 
with other states' plans to address regional visibility impairment 
caused by regional haze until we received Nevada's Regional Haze 
SIP. As explained in Section IV.D.2. of this notice, NDEP relied on 
the [Western Regional Air Partnership's] source apportionment 
modeling to demonstrate that Nevada's emissions are projected to 
have a minimal contribution to sulfate and nitrate extinction in 
each of 24 Class I areas in five adjacent states. Moreover, none of 
the neighboring western states have requested emission reductions 
from Nevada in order to meet their [reasonable progress goals]. 
Therefore, in proposing to approve Nevada's [Regional Haze] SIP, we 
are proposing to find that this plan revision contains adequate 
provisions to protect visibility in other states.''
---------------------------------------------------------------------------

    With respect to the requirements of CAA section 110(a)(2)(D)(ii), 
EPA proposes to approve Nevada's Infrastructure SIP Submittals with 
respect to the Clark County portion of the Nevada SIP, contingent on 
finalizing EPA's proposed approval of Clark County's SIP revisions for 
the review of new or modified stationary sources, and to disapprove the 
SIP with respect to the NDEP and Washoe County portions of the Nevada 
SIP, for the reasons discussed at the start of section III.B of this 
notice and in our Overarching TSD.
    For Section 110(a)(2)(F), we propose to approve the Clark County 
portion of the SIP, contingent on finalizing EPA's proposed approval of 
Clark County's SIP revisions for the review of new or modified 
stationary sources, for subsections 110(a)(2)(F)(i) and 
110(a)(2)(F)(ii). See our Overarching TSD. We propose to disapprove 
subsection 110(a)(2)(F)(iii) for the Clark County portion of the SIP 
because Clark County has repealed its regulation, Section 24, that 
formerly addressed the correlation requirement of this subsection, 
without submitting a SIP revision to replace it. For the NDEP and 
Washoe County portions of the SIP, we propose to approve Nevada's 
Infrastructure SIP Submittals for all three subsections. Note, however, 
that our proposed approval of subsections 110(a)(2)(F)(ii) and 
110(a)(2)(F)(iii) for the Washoe County portion of the SIP is 
contingent on finalizing EPA's proposed approval of Washoe County Air 
Quality Regulations 030.218, 030.230, 030.235, and 030.970. See our 
Overarching TSD.
    For Section 110(a)(2)(J) we propose to approve Nevada's 
Infrastructure SIP Submittals as meeting the consultation, public 
notification, and visibility requirements of this section. Our proposed 
approval with respect to the consultation requirements of this section 
are contingent on finalizing EPA's proposed approval of certain 
provisions of Nevada's 2012 Submittal, as described in section III.A of 
this notice. For the permitting-related requirements of section 
110(a)(2)(J), we propose to approve the Clark County portion of the 
SIP, contingent on finalizing EPA's proposed approval of Clark County's 
SIP revisions for the review of new or modified stationary sources, and 
to disapprove the NDEP and Washoe County portions of the SIP, for the 
reasons discussed at the start of section III.B of this notice and in 
our Overarching TSD.
    For Section 110(a)(2)(K), we propose to approve the Clark County 
portion of the SIP contingent on finalizing EPA's proposed approval of 
Clark County's SIP revisions for the review of new or modified 
stationary sources. See our Overarching TSD. We propose to disapprove 
the NDEP and Washoe County portions of the SIP with respect to the 
permit modeling requirements of section 110(a)(2)(K), for the reasons 
discussed at the start of section III.B of this notice and our 
Overarching TSD.
    EPA takes very seriously a proposal to disapprove a state plan, as 
we believe that it is preferable, and preferred in the provisions of 
the Clean Air Act, that these requirements be implemented through state 
plans. A state plan need not contain exactly the same provisions that 
EPA might require, but EPA must be able to find that the state plan is 
consistent with the requirements of the Act. Further, EPA's oversight 
role requires that it assure consistent implementation of Clean Air Act 
requirements by states across the country, even while acknowledging 
that individual decisions from source to source or state to state may 
not have identical outcomes. EPA believes these proposed disapprovals 
are the only path that is consistent with the Act at this time.

III.C. Alternative Proposed Disapprovals (Parallel Processing)

    Several of our proposed approvals rely on Nevada's 2012 Submittal, 
which was made under the parallel processing mechanism provided by 40 
CFR part 51, appendix V, Section 2.3. If Nevada is not able to submit 
the fully adopted SIP revision anticipated by its 2012 Submittal by the 
end of August 2012, as stated in the letter transmitting the 2012 
Submittal, EPA must still take final action by September 30, 2012,

[[Page 46369]]

consistent with the terms of the consent decree entered October 20, 
2011 in WildEarth Guardians v. EPA, Case No. 3:11-cv-00190 and the 
settlement agreement entered November 30, 2011 in Sierra Club et al v. 
Lisa Jackson, Case No. 3:10-cv-04060-CRB, as amended. Therefore, as a 
contingency for such a case, we propose, in the alternative, to 
disapprove Nevada's Infrastructure SIP Submittals with respect to the 
following infrastructure SIP requirements.
    For Section 110(a)(2)(E), in the absence of the anticipated SIP 
revisions, Nevada's 2008 Ozone Submittal, 2008 PM2.5 
Submittal, 2009 PM2.5 Submittal, and 2009 PM2.5 
Supplement have not provided necessary assurances of adequate personnel 
and funding for Clark County DAQ and Washoe County AQMD to carry out 
the SIP, as required by section 110(a)(2)(E)(i).\32\ More broadly, the 
SIP still contains outdated information in Section 12 (``Resources''), 
as approved on May 31, 1972 (37 FR 10842). On this basis, we propose, 
in the alternative, to disapprove Nevada's 2008 and 2009 Infrastructure 
SIP Submittals for the subsection 110(a)(2)(E)(i). Nonetheless, Nevada 
has provided necessary assurances of adequate legal authority to carry 
out the SIP at both the state and county levels. In other words, our 
proposed approval regarding the Nevada's legal authority for 
subsections 110(a)(2)(E)(i) and 110(a)(2)(E)(iii) do not rely on 
Nevada's 2012 Submittal.
---------------------------------------------------------------------------

    \32\ In its 2008 and 2009 Infrastructure SIP Submittals, Nevada 
did not submit any information on personnel or funding for Clark 
County and did so for Washoe County only for the 2006 
PM2.5 NAAQS.
---------------------------------------------------------------------------

    With respect to CAA section 110(a)(2)(E)(ii), pertaining to 
conflict of interest requirements, absent receipt of the SIP revisions 
embodied by Nevada's 2012 Submittal--especially the Nevada Ethics in 
Government statutory provisions included in that submittal--we propose, 
in the alternative, to disapprove Nevada's 2008 and 2009 Infrastructure 
SIP Submittals as they do not address the various conflict of interest 
requirements.
    Our proposed approval of subsections 110(a)(2)(F)(ii) and 
110(a)(2)(F)(iii) for the Washoe County portion of the SIP are 
contingent upon finalizing EPA's proposed approval of four Washoe 
County regulations. Thus, absent receipt of these SIP revisions as 
embodied by Nevada's 2012 Submittal, we propose, in the alternative, to 
disapprove these two subsections for the Washoe County portion of the 
SIP because the local regulations supportive of these requirements are 
currently not in the SIP.
    Lastly, in the absence of the SIP revisions anticipated by Nevada's 
2012 Submittal, Nevada's formal submittals (i.e., the 2008 Ozone 
Submittal, 2008 PM2.5 Submittal, 2009 PM2.5 
Submittal, and 2009 PM2.5 Supplement) have not met the 
consultation requirements of sections 110(a)(2)(J) and 
110(a)(2)(M).\33\ These four submittals highlight provisions for 
notification and opportunity for comment in connection with rulemaking 
and issuing permits and make a commitment to maintain a process of 
consultation.
---------------------------------------------------------------------------

    \33\ In its 2008 and 2009 Infrastructure SIP Submittals, Nevada 
did not submit any information about consultation within Clark 
County. For Washoe County, the 2009 PM2.5 Supplement 
included a copy of the ``Interlocal Agreement Concerning the Washoe 
County District Health Department'' as Attachment D. This agreement 
partially addresses the consultation requirements of CAA sections 
110(a)(2)(J) and (M), since it defines membership and other aspects 
of the DBOH's operation such that Washoe County and the two 
incorporated cities (Reno and Sparks) each have two representatives 
on the seven-member DBOH. However, it is insufficient to address the 
consultation requirements of CAA section 121. For example, it does 
not identify a process to consult with Federal Land Managers having 
authority over Federal land affected by the County's air plans.
---------------------------------------------------------------------------

    However, sections 110(a)(2)(J) and 110(a)(2)(M) address more than 
just rulemaking or permits, although such consultation may be relevant 
as part of the process for consultation required under CAA section 121. 
Moreover, a commitment to maintain an acceptable process of 
consultation is not a substitute for the identification of the process 
itself as part of the Nevada SIP. More broadly, the SIP still contains 
outdated information in Section 11 (``Intergovernmental Relations''), 
as approved on May 31, 1972 (37 FR 10842). While the Nevada SIP does 
have a number of statutes that authorize the state and counties to 
cooperate with local governments (see, e.g., NRS 445B.210, 445B.220, 
445B.235, and 445B.500), such cooperation is optional and similarly not 
a substitute for a process for consultation that exists as part of the 
SIP. On this basis, we propose, in the alternative, to disapprove 
Nevada's 2008 and 2009 Infrastructure SIP Submittals with respect to 
the consultation requirements of section 110(a)(2)(J) and section 
110(a)(2)(M).

III.D. Alternative Proposed Disapprovals (Clark County NSR)

    Several proposed approvals for the Clark County portion of the SIP 
rely on EPA finalizing its proposal of July 13, 2012 on Clark County's 
NSR program revisions. If EPA is unable to finalize the approvals 
embodied in that proposal, upon which our infrastructure SIP proposal 
relies (see our Overarching TSD for more details), EPA must still take 
final action by September 30, 2012, consistent with the terms of the 
consent decree entered October 20, 2011 in WildEarth Guardians v. EPA, 
Case No. 3:11-cv-00190 and the settlement agreement entered November 
30, 2011 in Sierra Club et al. v. Lisa Jackson, Case No. 3:10-cv-04060-
CRB, as amended. As a contingency for such a case, EPA proposes, in the 
alternative, to disapprove Nevada's Infrastructure SIP Submittals for 
the Clark County portion of the SIP with respect to the following 
infrastructure SIP requirements:
     Section 110(a)(2)(C), pertaining to the requirement for a 
program for the review of new or modified stationary sources, including 
the PSD requirements under CAA title 1, part C;
     Section 110(a)(2)(D)(i)(II), pertaining to interference 
with other states' required measures to prevent significant 
deterioration of air quality;
     Section 110(a)(2)(D)(ii), pertaining to notification of 
other states affected by new or modified stationary sources, as per 
section 126(a);
     Section 110(a)(2)(F)(i) and 110(a)(2)(F)(ii), pertaining 
to the installation, maintenance, and replacement of equipment to 
monitor emissions from stationary sources, and periodic reports on 
those emissions;
     Section 110(a)(2)(J), pertaining to CAA title 1, part C 
(relating to prevention of significant deterioration of air quality); 
and
     Section 110(a)(2)(K), pertaining to permit modeling.

III.E. Discussion of CAA SIP Revision Requirements

    Section 110(l) of the Act prohibits EPA from approving any SIP 
revision that would interfere with any applicable requirement 
concerning attainment and reasonable further progress (RFP) or any 
other applicable requirement of the Act. All of the elements of 
Nevada's Infrastructure SIP Submittals that we are proposing to 
approve, as explained in our Overarching TSD and Section 128 TSD, would 
improve the SIP by replacing obsolete provisions and by providing new 
provisions addressing the resources, conflict of interest, stationary 
source monitoring, and consultation requirements of the CAA. We propose 
to determine that our approval of these elements of Nevada's 
Infrastructure SIP Submittals would comply with CAA section 110(l) 
because the proposed SIP revision would not interfere with the on-going 
process for ensuring that requirements for RFP and attainment of the 
NAAQS are met, and the submitted SIP revision

[[Page 46370]]

clarifies and updates the SIP. Our Overarching TSD and Section 128 TSD 
contain a more detailed discussion of our evaluation.

III.F. Consequences of Proposed Disapprovals

    Under section 179(a) of the CAA, final disapproval of a submittal 
that addresses a requirement of part D, title I of the CAA (CAA 
sections 171-193) or is required in response to a finding of 
substantial inadequacy as described in CAA section 110(k)(5) (SIP Call) 
starts a sanctions clock. Nevada's Infrastructure SIP Submittals were 
not submitted to meet either of these requirements. Therefore, any 
action we take to finalize the described partial disapprovals will not 
trigger mandatory sanctions under CAA section 179.
    In addition, CAA section 110(c)(1) provides that EPA must 
promulgate a Federal Implementation Plan (FIP) within two years after 
finding that a State has failed to make a required submission or 
disapproving a State implementation plan submission in whole or in 
part, unless EPA approves a SIP revision correcting the deficiencies 
within that two-year period. With respect to our proposed partial 
approval and partial disapproval of Nevada's submissions related to 
interstate transport under CAA section 110(a)(2)(D)(i)(I), however, we 
propose to conclude that any FIP obligation resulting from finalization 
of the partial disapproval would be satisfied by our determination that 
there is no deficiency in the SIP to correct. Finalization of this 
proposed disapproval also would not require any further action on 
Nevada's part given EPA's conclusion that the SIP is adequate to meet 
the requirements of CAA section 110(a)(2)(D)(i)(I) for the 2006 24-hour 
PM2.5 NAAQS.

IV. Statutory and Executive Order Reviews

IV.A. Executive Order 12866, Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and 
is therefore not subject to review under the EO.

IV.B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq, 
because this proposed partial approval and partial disapproval of SIP 
revisions under CAA section 110 will not in-and-of itself create any 
new information collection burdens but simply proposes to approve 
certain State requirements, and to disapprove certain other State 
requirements, for inclusion into the SIP. Burden is defined at 5 CFR 
1320.3(b).

IV.C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. For purposes of assessing the impacts of today's rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this proposed action will not have a 
significant impact on a substantial number of small entities. This 
proposed rule does not impose any requirements or create impacts on 
small entities. This proposed partial SIP approval and partial SIP 
disapproval under CAA section 110 will not in-and-of itself create any 
new requirements but simply proposes to approve certain State 
requirements, and to disapprove certain other State requirements, for 
inclusion into the SIP. Accordingly, it affords no opportunity for EPA 
to fashion for small entities less burdensome compliance or reporting 
requirements or timetables or exemptions from all or part of the rule. 
Therefore, this action will not have a significant economic impact on a 
substantial number of small entities.
    We continue to be interested in the potential impacts of this 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

IV.D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector. EPA has determined that the proposed partial approval and 
partial disapproval action does not include a Federal mandate that may 
result in estimated costs of $100 million or more to either State, 
local, or tribal governments in the aggregate, or to the private 
sector. This action proposes to approve certain pre-existing 
requirements, and to disapprove certain other pre-existing 
requirements, under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this proposed 
action.

IV.E. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that 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.''
    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, as 
specified in Executive Order 13132, because it merely proposes to 
approve certain State requirements, and to disapprove certain other 
State requirements, for inclusion into the SIP and does not alter the 
relationship or the distribution of power and responsibilities 
established in the Clean Air Act. Thus, Executive Order 13132 does not 
apply to this action.

IV.F. Executive Order 13175, Coordination With Indian Tribal 
Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP 
on which EPA is proposing action would not 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. Thus, 
Executive Order 13175 does not apply to this proposed action.

[[Page 46371]]

IV.G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This proposed action is not 
subject to EO 13045 because it is not an economically significant 
regulatory action based on health or safety risks subject to Executive 
Order 13045 (62 FR 19885, April 23, 1997). This proposed partial 
approval and partial disapproval under CAA section 110 will not in-and-
of itself create any new regulations but simply proposes to approve 
certain State requirements, and to disapprove certain other State 
requirements, for inclusion into the SIP.

IV.H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This proposed rule is not subject to Executive Order 13211 (66 FR 
28355, May 22, 2001) because it is not a significant regulatory action 
under Executive Order 12866.

IV.I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    The EPA believes that this proposed action is not subject to 
requirements of Section 12(d) of NTTAA because application of those 
requirements would be inconsistent with the Clean Air Act.

IV.J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Population

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this proposed rulemaking.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

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

    Dated: July 20, 2012.
 Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2012-19015 Filed 8-2-12; 8:45 am]
BILLING CODE 6560-50-P


