[Federal Register Volume 87, Number 202 (Thursday, October 20, 2022)]
[Proposed Rules]
[Pages 63744-63751]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-22864]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2022-0704; FRL-10224-01-R9]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve in part, conditionally approve in part, and disapprove in part 
a state implementation plan (SIP) revision submitted by the State of 
Nevada pursuant to the requirements of the Clean Air Act (CAA or 
``Act'') for the implementation, maintenance, and enforcement of the 
2012 national ambient air quality standards (NAAQS) for particulate 
matter less than 2.5 micrometers in diameter (PM2.5). As 
part of this action, we are proposing to reclassify certain regions of 
the State for emergency episode planning purposes with respect to 
PM2.5. We are also proposing to approve an exemption from 
emergency episode planning requirements for PM2.5 for the 
Nevada Division of Environmental Protection (NDEP) and Washoe County. 
Finally, we are proposing to approve two new definitions and four 
regulatory revisions into the Nevada SIP. We are taking comments on 
this proposal and, after considering any comments submitted, plan to 
take final action.

DATES: Written comments must be received on or before November 21, 
2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2022-0704 at https://www.regulations.gov. For comments submitted at 
Regulations.gov, follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI)

[[Page 63745]]

or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, please contact 
the person identified in the FOR FURTHER INFORMATION CONTACT section. 
For the full EPA public comment policy, information about CBI or 
multimedia submissions, and general guidance on making effective 
comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. If you need assistance in a language other than English or if 
you are a person with disabilities who needs a reasonable accommodation 
at no cost to you, please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Tom Kelly, Air Planning Office (AIR-
2), U.S. Environmental Protection Agency, Region IX, (415) 972-3856, 
[email protected].

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

Table of Contents

I. The EPA's Approach to the Review of Infrastructure SIP 
Submissions
II. Background
    A. Statutory Framework
    B. Regulatory History
III. State Submittal
    A. Infrastructure SIP Submittal
    B. New and Revised Rules
    C. Commitment Letters
IV. The EPA's Evaluation and Proposed Action
    A. Proposed Approvals and Partial Approvals
    B. Exemptions; Conditional Approvals
    C. Proposed Partial Disapprovals
    D. Deferred Action
    E. Request for Public Comments
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews

I. The EPA's Approach to the Review of Infrastructure SIP Submissions

    The EPA is proposing action on a SIP submittal from Nevada that 
addresses the infrastructure requirements of CAA sections 110(a)(1) and 
110(a)(2) for the primary and secondary 2012 PM2.5 NAAQS. 
The requirement for states to submit a SIP revision of this type arises 
out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states 
must make SIP submittals ``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 
these SIP submittals are to provide for the ``implementation, 
maintenance, and enforcement'' of such NAAQS. The statute directly 
imposes on states the duty to make these SIP submittals, and the 
requirement to make the submittals is not conditioned upon the EPA's 
taking any action other than promulgating a new or revised NAAQS. 
Section 110(a)(2) includes a list of specific elements that ``[e]ach 
such plan'' submittal must address.
    The EPA has historically referred to these SIP submittals made for 
the purpose of satisfying the requirements of CAA sections 110(a)(1) 
and 110(a)(2) as ``infrastructure SIP'' submittals. Although the term 
``infrastructure SIP'' does not appear in the CAA, the EPA uses the 
term to distinguish this particular type of SIP submittal from 
submittals that are intended to satisfy other SIP requirements under 
the CAA, such as ``nonattainment SIP'' or ``attainment SIP'' submittals 
to address the nonattainment planning requirements of part D of title I 
of the CAA, ``regional haze SIP'' submittals required to address the 
visibility protection requirements of CAA section 169A, and 
nonattainment new source review (NSR) permit program submittals to 
address the permit requirements of CAA, title I, part D.
    Historically, the EPA has elected to use guidance documents to make 
recommendations to states for infrastructure SIPs, in some cases 
conveying needed interpretations on newly arising issues and in other 
cases conveying interpretations that have already been developed and 
applied to individual SIP submittals for particular elements.\1\ The 
EPA most recently issued guidance for infrastructure SIPs on September 
13, 2013 (``2013 Infrastructure SIP Guidance'').\2\ The EPA developed 
this document to provide states with up-to-date guidance for 
infrastructure SIPs for any new or revised NAAQS. Within this guidance, 
the EPA describes the duty of states to make infrastructure SIP 
submittals to meet basic structural SIP requirements within three years 
of promulgation of a new or revised NAAQS. The EPA also made 
recommendations about many specific subsections of section 110(a)(2) 
that are relevant in the context of infrastructure SIP submittals.\3\ 
The guidance also discusses the substantively important issues that are 
germane to certain subsections of section 110(a)(2). Significantly, the 
EPA interprets sections 110(a)(1) and 110(a)(2) such that 
infrastructure SIP submittals need to address certain issues and need 
not address others. Accordingly, the EPA reviews each infrastructure 
SIP submittal for compliance with the applicable statutory provisions 
of section 110(a)(2), as appropriate.
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    \1\ We note, however, that nothing in the CAA requires the EPA 
to provide guidance or to promulgate regulations for infrastructure 
SIP submittals. The CAA directly applies to states and requires the 
submittal of infrastructure SIP submittals, regardless of whether or 
not the EPA provides guidance or regulations pertaining to such 
submittals. The EPA elects to issue such guidance in order to assist 
states, as appropriate.
    \2\ ``Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' 
Memorandum from Stephen D. Page, September 13, 2013.
    \3\ The EPA's September 13, 2013, guidance did not make 
recommendations with respect to infrastructure SIP submittals to 
address section 110(a)(2)(D)(i)(I). The EPA issued the guidance 
shortly after the U.S. Supreme Court agreed to review the D.C. 
Circuit decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which 
had interpreted the requirements of section 110(a)(2)(D)(i)(I). In 
light of the uncertainty created by ongoing litigation, the EPA 
elected not to provide additional guidance on the requirements of 
section 110(a)(2)(D)(i)(I) at that time. As the guidance is neither 
binding nor required by statute, whether the EPA elects to provide 
guidance on a particular section has no impact on a state's CAA 
obligations.
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    As an example, section 110(a)(2)(E)(ii) is a required element of 
section 110(a)(2) for infrastructure SIP submittals. Under this 
element, a state must meet the substantive requirements of section 128, 
which pertain to state boards that approve permits or enforcement 
orders and heads of executive agencies with similar powers. Thus, the 
EPA reviews infrastructure SIP submittals to ensure that the state's 
SIP appropriately addresses the requirements of section 
110(a)(2)(E)(ii) and section 128. The 2013 Infrastructure SIP Guidance 
explains the EPA's interpretation that there may be a variety of ways 
by which states can appropriately address these substantive statutory 
requirements, depending on the structure of an individual state's 
permitting or enforcement program (e.g., whether permits and 
enforcement orders are approved by a multi-member board or by a head of 
an executive agency). However they are addressed by the state, the 
substantive requirements of section 128 are necessarily included in the 
EPA's evaluation of infrastructure SIP submittals because section 
110(a)(2)(E)(ii) explicitly requires that the state satisfy the 
provisions of section 128.
    As another example, the EPA's review of infrastructure SIP 
submittals with respect to the prevention of significant

[[Page 63746]]

deterioration (PSD) program requirements in sections 110(a)(2)(C), 
(D)(i)(II), and (J) focuses upon the structural PSD program 
requirements contained in part C, title I of the Act and the EPA's PSD 
regulations. Structural PSD program requirements include provisions 
necessary for the PSD program to address all regulated sources and 
regulated NSR pollutants, including greenhouse gases. By contrast, 
structural PSD program requirements do not include provisions that are 
not required under EPA's regulations at 40 Code of Federal Regulations 
(CFR) 51.166 but are merely available as an option for the state, such 
as the option to provide grandfathering of complete permit applications 
with respect to the 2012 PM2.5 NAAQS. Accordingly, the 
latter optional provisions are types of provisions the EPA considers 
irrelevant in the context of an infrastructure SIP action.
    For other section 110(a)(2) elements, however, the EPA's review of 
a state's infrastructure SIP submittal focuses on assuring that the 
state's SIP meets basic structural requirements. For example, section 
110(a)(2)(C) includes, inter alia, the requirement that states have a 
program to regulate minor new sources. Thus, the EPA evaluates whether 
the state has a SIP-approved minor NSR program and whether the program 
addresses the pollutants relevant to that NAAQS. In the context of 
acting on an infrastructure SIP submittal, however, the EPA does not 
think it is necessary to conduct a review of each and every provision 
of a state's existing minor source program (i.e., already in the 
existing SIP) for compliance with the requirements of the CAA and the 
EPA's regulations that pertain to such programs.
    With respect to certain other issues, the EPA does not believe that 
an action on a state's infrastructure SIP submittal is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include existing provisions 
related to ``director's variance'' or ``director's discretion'' that 
may be contrary to the CAA because they purport to allow revisions to 
SIP-approved emissions limits while limiting public process or not 
requiring further approval by the EPA and existing provisions for PSD 
programs that may be inconsistent with current requirements of the 
EPA's ``Final NSR Improvement Rule.'' \4\ Thus, the EPA believes it may 
approve an infrastructure SIP submittal without scrutinizing the 
totality of the existing SIP for such potentially deficient provisions 
and may approve the submittal even if it is aware of such existing 
provisions.\5\ It is important to note that the EPA's approval of a 
state's infrastructure SIP submittal should not be construed as 
explicit or implicit re-approval of any existing potentially deficient 
provisions that relate to the three specific issues just described.
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    \4\ 67 FR 80186, December 31, 2002, as amended by 72 FR 32526, 
June 13, 2007.
    \5\ By contrast, the EPA notes that if a state were to include a 
new provision in an infrastructure SIP submittal that contained a 
legal deficiency, such as a new exemption for excess emissions 
during SSM events, then the EPA would need to evaluate that 
provision for compliance against the rubric of applicable CAA 
requirements in the context of the action on the infrastructure SIP.
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    The EPA's approach to the review of infrastructure SIP submittals 
is to identify the CAA requirements that are logically applicable to 
that submittal. The EPA believes that this approach to the review of a 
particular infrastructure SIP submittal is appropriate, because it 
would not be reasonable to read the general requirements of section 
110(a)(1) and the list of elements in 110(a)(2) as requiring review of 
each and every provision of a state's existing SIP against all 
requirements in the CAA and the EPA regulations merely for purposes of 
assuring that the state in question has the basic structural elements 
for a functioning SIP for a new or revised NAAQS. 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. These provisions, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when the EPA evaluates adequacy of the infrastructure 
SIP submittal. The EPA believes that a better approach is for states 
and the EPA to focus attention on those elements of section 110(a)(2) 
of the CAA most likely to warrant a specific SIP revision due to the 
promulgation of a new or revised NAAQS or other factors.
    For example, the EPA's 2013 Infrastructure SIP Guidance gives 
simpler recommendations with respect to carbon monoxide than other 
NAAQS pollutants to meet the visibility requirements of section 
110(a)(2)(D)(i)(II), because carbon monoxide does not affect 
visibility. As a result, an infrastructure SIP submittal for any future 
new or revised NAAQS for carbon monoxide need only state this fact in 
order to address the visibility prong of section 110(a)(2)(D)(i)(II).
    Finally, the EPA believes that its approach with respect to 
infrastructure SIP requirements is based on a reasonable reading of 
sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow the EPA to take appropriately 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes the 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 to otherwise comply with the CAA.\6\ Section 
110(k)(6) authorizes the EPA to correct errors in past actions, such as 
past approvals of SIP submittals.\7\ Significantly, the EPA's 
determination that an action on a state's infrastructure SIP submittal 
is not the appropriate time and place to address all potential existing 
SIP deficiencies does not preclude the EPA's subsequent reliance on 
provisions in section 110(a)(2) as part of the basis for action to 
correct those deficiencies 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 an infrastructure SIP submittal, the EPA believes that section 
110(a)(2)(A) may be among the statutory bases that the EPA relies upon 
in the course of addressing such deficiency in a subsequent action.\8\
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    \6\ For example, the EPA issued a SIP call to Utah to address 
specific existing SIP deficiencies related to the treatment of 
excess emissions during SSM events. See ``Finding of Substantial 
Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revisions,'' 76 FR 21639, April 18, 2011.
    \7\ The EPA has used this authority to correct errors in past 
actions on SIP submittals related to PSD programs. See ``Limitation 
of Approval of Prevention of Significant Deterioration Provisions 
Concerning Greenhouse Gas Emitting-Sources in State Implementation 
Plans; Final Rule,'' 75 FR 82536, December 30, 2010. The EPA has 
previously used its authority under CAA section 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).
    \8\ See, e.g., the EPA's disapproval of a SIP submittal 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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[[Page 63747]]

II. Background

A. Statutory Framework

    Section 110(a)(2) includes a list of specific elements that 
``[e]ach such plan'' submission must include. The infrastructure SIP 
elements required by section 110(a)(2) are as follows:
     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 pollution abatement 
and international air pollution.
     Section 110(a)(2)(E): Adequate resources and authority, 
conflict of interest, and oversight of local government and regional 
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, PSD, and visibility protection.
     Section 110(a)(2)(K): Air quality modeling and submittal 
of modeling data.
     Section 110(a)(2)(L): Permitting fees.
     Section 110(a)(2)(M): Consultation and participation by 
affected local entities.
    Two elements identified in section 110(a)(2) are not governed by 
the three-year submittal deadline of section 110(a)(1) and are 
therefore not addressed in this action. These two elements are: Section 
110(a)(2)(C) to the extent it refers to permit programs required under 
part D (nonattainment NSR), and Section 110(a)(2)(I), pertaining to the 
nonattainment planning requirements of part D. As a result, this action 
does not address requirements for the nonattainment NSR portion of 
section 110(a)(2)(C) or the whole of section 110(a)(2)(I).

B. Regulatory History

    On January 15, 2013, the EPA promulgated a revised primary NAAQS 
for PM2.5, (``the 2012 PM2.5 NAAQS''), triggering 
a requirement for states to submit infrastructure SIPs by December 15, 
2015. The revised standard lowered the annual PM2.5 NAAQS to 
12.0 micrograms per cubic meter ([micro]g/m\3\) to provide increased 
protection against health effects associated with long- and short-term 
exposures (including premature mortality, increased hospital admissions 
and emergency department visits, and development of chronic respiratory 
disease).\9\
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    \9\ 78 FR 3086 (January 15, 2013).
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III. State Submittal

A. Infrastructure SIP Submittal

    The NDEP made a submittal addressing the infrastructure SIP 
requirements for the 2012 PM2.5 NAAQS on December 11, 2015 
(``Nevada's Infrastructure SIP Submittal'').\10\ It included separate 
sections for Clark County \11\ and Washoe County.\12\ We refer to each 
individual section as that agency's or County's portion of the 
submittal. In accordance with CAA section 110(k)(1)(B), the 
infrastructure SIP became complete by operation of law on June 11, 
2016.
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    \10\ Letter and enclosures from David Emme, Administrator, NDEP, 
to Jared Blumenfeld, Regional Administrator, EPA Region IX, RE: The 
Nevada State Implementation Plan for the 2012 Annual Primary Fine 
Particulate Matter NAAQS, dated December 11, 2015, with enclosures 
including the Nevada Division of Environmental Protection Portion of 
the Nevada State Implementation Plan for the 2012 Annual Primary 
Fine Particulate Matter NAAQS, dated December 11, 2015.
    \11\ Letter from Lewis Wallenmeyer, Director, Clark County 
Department of Air Quality, to David Emme, Administrator, NDEP, 
Subject: the Clark County Portion of the PM2.5 State 
Implementation Plan, dated August 20, 2015, including the enclosed 
Clark County Portion of the State Implementation Plan to Meet the 
PM2.5 SIP Requirements of the Clean Air Act Section 
110(a)(2), dated August 2015.
    \12\ Letter from Charlene Albee, Director, Washoe County Health 
District, to Dave Emme, Administrator, Nevada Division of 
Environmental Protection, Subject: PM2.5 State 
Implementation Plan for the 2012 Annual NAAQS, dated December 4, 
2015, with enclosures, including: the Washoe County Portion of the 
Nevada State Implementation Plan to Meet the PM2.5 
Infrastructure SIP Requirements of Clean Air Act Section 110(a)(2), 
dated October 22, 2015.
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    As noted in each respective portion of the submittal, the NDEP, 
Clark County, and Washoe County all provided public notice and an 
opportunity for public comment prior to finalizing each portion of the 
infrastructure SIP submittal. Additionally, each agency either held or 
offered to hold a public hearing as part of the public notice and 
comment period. Notice, hearing, and adoption dates for each portion of 
the submittal are shown in Table 1. We find that these submittals meet 
the procedural requirements for public participation under CAA section 
110(a)(2) and 40 CFR 51.102.

                                      Table 1--Notification and Opportunities for Public Comment on the Nevada SIP
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             Agency                          Submittal                 Start of public notice            Hearing date                Adoption date
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NDEP...........................  Nevada Division of Environmental   October 19, 2015...........  None a.....................  December 11, 2015.
                                  Protection Portion of the Nevada
                                  State Implementation Plan for
                                  the 2012 Annual Primary Fine
                                  Particulate Matter NAAQS.
Clark County Board of            Clark County Portion of the State  June 20, 2015..............  August 18, 2015............  August 18, 2015.
 Commissioners.                   Implementation Plan to Meet the
                                  PM2.5 SIP Requirements of the
                                  Clean Air Act Section 110(a)(2).
Washoe County District Board of  The Washoe County Portion of the   September 21, 2015.........  October 22, 2015...........  October 22, 2015.
 Health.                          Nevada State Implementation Plan
                                  to Meet the PM2.5 Infrastructure
                                  SIP Requirements of Clean Air
                                  Act Section 110(a)(2).
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a The hearing was tentatively scheduled for November 19, 2015, but cancelled because no one requested a hearing.

B. New and Revised Rules

    In its December 11, 2015 letter transmitting the Nevada 
Infrastructure SIP Submittal, the NDEP included several new and revised 
rules for incorporation into the Nevada SIP.\13\ Along with the new and 
revised rules, the NDEP included documentation of the public comment 
period, which began on September 14, 2015; the public hearing, on 
October 14, 2015; and proof of adoption by the State Environmental 
Commission.
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    \13\ See Enclosure NDEP 2012 PM2.5 NAAQS 
Infrastructure SIP, December 11, 2015, Nevada Division of 
Environmental Protection Regulatory Amendments for Approval into the 
Applicable Nevada SIP.
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1. What rules did the State submit
    Table 2 provides a list of the new and revised rules, which are 
included in the docket for this rulemaking.

[[Page 63748]]



                  Table 2--New and Revised Rules Submitted by Nevada for Adoption Into the SIP
----------------------------------------------------------------------------------------------------------------
                                    Nevada
                                Administrative    New/previous
            Agency             Code (NAC) rule      EPA rule      Adoption date  Submittal date     Rule title
                                     No.            approval
----------------------------------------------------------------------------------------------------------------
Nevada Environmental           445B.1349......  New............      10/27/2015      12/11/2015  Definition of
 Commission.                                                                                      ``PM2.5
                                                                                                  emissions''.
                               445B.1355......  New............      10/27/2015      12/11/2015  Definition of
                                                                                                  ``PM10
                                                                                                  emissions''.
                               Revision to....  May 8, 2007 (72      10/27/2015      12/11/2015  Emissions of
                               445B.2203......   FR 25971).                                       particulate
                                                                                                  matter: Fuel-
                                                                                                  burning
                                                                                                  equipment.
                               Revision to      March 27, 2006       10/27/2015      12/11/2015  Incinerator
                                445B.2207.       (71 FR 15040).                                   burning.
                               Revision to      August 23, 2012      10/27/2015      12/11/2015  Control
                                445B.22096.      (77 FR 50936).                                   measures
                                                                                                  constituting
                                                                                                  BART;
                                                                                                  limitations on
                                                                                                  emissions.
                               Revision to      October 21,          10/27/2015      12/11/2015  Standards of
                                445B.22097.      2014 (79 FR                                      quality for
                                                 62851).                                          ambient air
----------------------------------------------------------------------------------------------------------------

2. What is the purpose of the submitted rule revisions
    The regulations were proposed ``to further align [Nevada's 
regulations] with the national ambient air quality standards (NAAQS) 
currently in effect,'' and include ``new definitions for 
PM2.5 emissions and PM10 emissions to clarify 
that direct gaseous emissions from a source that condense to form 
particulate matter . . . are included in those terms, as required by 
federal regulation.'' \14\
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    \14\ Department of Conservation and Natural Resources, which 
includes the Nevada Division of Environmental Protection, State 
Environmental Commission, Notice of Regulatory Hearing Adoption of 
Regulations and Other Matters Before the State Environmental 
Commission Public Notice, SEC Public Hearing October 14, 2015.
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    The new regulations support or address infrastructure SIP 
requirements for the 2012 PM2.5 NAAQS by strengthening the 
control of PM2.5 emissions. Rules in the Nevada 
Administrative Code (NAC) 445B.1349 and 445.1355 would, for the first 
time, define PM2.5 emissions and PM10 emissions 
to include vapor emissions that can condense to form 
PM10.\15\ The EPA clarified that condensable 
PM2.5 must be covered in PSD and nonattainment new source 
review permitting in a memorandum dated April 14, 2014.\16\ The EPA's 
2013 Infrastructure SIP Guidance explained that the EPA will evaluate 
structural elements of a state's PSD program, which includes provisions 
to regulate all NSR pollutants, including condensable PM and its 
precursor emissions.\17\ The revisions to NAC 445B.2203, NAC 445B.2207 
and NAC 445B.22096 change language related to PM10 emissions 
to be consistent with NAC 445B.1355, which strengthens the controls for 
specific sources by controlling condensable PM10 emissions. 
The change to NAC 445B.22097 would lower the State's annual average 
standard for PM2.5 to 12.0 [micro]g/m\3\, consistent with 
the 2012 PM2.5 NAAQS. It would also remove the State annual 
average standard for PM10, which the EPA revoked in a final 
rule published on October 17, 2006 (71 FR 61144) but leaves the State 
24-hour PM10 NAAQS in place, consistent with the EPA's 24-
hour PM10 NAAQS.
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    \15\ This rulemaking does not alter the definition of 
PM10 at NAC 445B.135, adopted into the SIP in a final 
rule on March 26, 2006 (FR 71 FR 15040).
    \16\ Memorandum from Stephen D. Page, Office of Air Quality 
Planning and Standards, to EPA Regional Air Division Directors, 
Regions 1-10, dated April 8, 2014, regarding: Interim Guidance on 
the Treatment of Condensable Particulate Matter Test Results in the 
Permitting Programs.
    \17\ ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements under Clean Air Act Sections 110(a)(1) and 
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013, 
pp. 25-29.
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C. Commitment Letters

    In addition to the submittals identified in Table 1, NDEP and 
Washoe County submitted letters committing to develop, adopt, and 
submit rules meeting the public notice requirements of CAA section 127, 
which are cross-referenced in CAA section 110(a)(2)(J), within one year 
of our final action conditionally approving both agencies for the 
requirement.\18\ CAA section 127 requires that each state's EPA-
approved SIP contain measures to notify the public of instances where 
any NAAQS is exceeded, advise the public of health hazards related to 
any exceedance, and provide information on ways to prevent such 
standards from being exceeded in the future. While NDEP and Washoe 
County provide notifications to the public in the event of a NAAQS 
exceedance, neither agency's EPA-approved SIP contains measures 
requiring such notifications. CAA section 110(k)(4) authorizes the EPA 
to conditionally approve a plan revision based on a commitment by the 
state to adopt specific enforceable measures by a date certain but not 
later than one year after the date of the plan approval.
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    \18\ Letter from Greg Lovato, Administrator Nevada Division of 
Environmental Protection, to Martha Guzman, Regional Administrator, 
U.S. EPA Region IX, Re: Request for Conditional Approval of Nevada's 
Infrastructure State Implementation Plan for the 2012 
PM2.5 and 2015 Ozone National Ambient Air Quality 
Standards, dated September 9, 2022 and Letter from Greg Lovato, 
Administrator Nevada Division of Environmental Protection to Martha 
Guzman, Regional Admin, Re: Nevada's Infrastructure State 
Implementation Plan for the 2012 PM2.5 National Ambient 
Air Quality Standard dated September 9, 2022 that enclosed the 
letter from Francisco Vega, Director, Air Quality Management 
Division, Washoe County Health Division to Greg Lovato, 
Administrator, Nevada Division of Environmental Protection and 
Martha Guzman, EPA, Re: Request for Conditional Approval of Nevada's 
Infrastructure State Implementation Plan for the 2012 
PM2.5 and 2015 Ozone National Ambient Air Quality 
Standards, dated September 2, 2022.
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IV. The EPA's Evaluation and Proposed Action

A. Proposed Approvals and Partial Approvals

1. Infrastructure SIP
    We have evaluated Nevada's Infrastructure SIP Submittal and the 
existing provisions of the Nevada SIP for compliance with the 
infrastructure SIP requirements (or ``elements'') of CAA section 
110(a)(2) and applicable regulations in 40 CFR part 51 (``Requirements 
for Preparation, Adoption, and Submittal of State Implementation 
Plans''). The Technical Support Document (TSD), which is available in 
the docket to this proposed rulemaking, includes our evaluation of all 
of the elements and rationale for our proposed action, as well as our 
evaluation of various statutory and regulatory provisions. For some 
requirements, we refer to prior actions and TSDs for Nevada 
Infrastructure SIPs, which are also included in the docket for this 
rulemaking.
    Based on the analysis in this proposed rulemaking and discussed in 
detail in our TSD, we propose to approve Nevada's Infrastructure SIP 
with respect to the following Clean Air Act requirements:\19\
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    \19\ All approvals are full approvals for NDEP, Clark County, 
and Washoe County except where noted otherwise.

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[[Page 63749]]

     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C)(in part): Program for enforcement of control 
measures (full approval), and regulation of new stationary sources 
(approval for Clark County only) and minor sources (full approval).
     110(a)(2)(D)(in part): Interstate Pollution Transport.
    [cir] 110(a)(2)(D)(i)(I)--significant contribution to a 
nonattainment area (prong 1).
    [cir] 110(a)(2)(D)(i)((I)--interference with a maintenance area 
(prong 2).
    [cir] 110(a)(2)(D)(i)(II) (in part)--interference with PSD (prong 
3) (approval for Clark County only) and visibility transport (prong 4) 
(deferred).
    [cir] 110(a)(2)(D)(ii) (in part)--interstate pollution abatement 
(approval for Clark County only) and international air pollution.
     110(a)(2)(E): Adequate resources and authority, conflict 
of interest, and oversight of local governments and regional agencies.
     110(a)(2)(F): Stationary source monitoring and reporting.
     110(a)(2)(G): Emergency episodes.
     110(a)(2)(H): SIP revisions.
     110(a)(2)(J) (in part): Consultation with government 
officials, public notification (conditional approval for NDEP and 
Washoe County, approval for Clark County), and PSD and visibility 
protection (approval for Clark County only).
     110(a)(2)(K): Air quality modeling and submission of 
modeling data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.
2. Proposed Approval of State Provisions Into the Nevada SIP
    As part of our proposed approval of Nevada's infrastructure SIP 
submittal, we are also proposing to approve several State regulations 
into the Nevada SIP. Specifically, we propose to approve into the SIP 
six provisions from the Nevada Administrative Code. Two new provisions, 
NAC 445B.1349 and NAC 445B.1355, define ``PM2.5 emissions'' 
and ``PM10 emissions'' to include vapors that can condense 
to form PM2.5 and PM10. Three provisions are 
revisions to NAC 445B.2203, NAC 445B.2207, and NAC 445B.22096 and 
replace the term ``emissions of PM10'' with 
``PM10 emissions,'' Finally, NAC 445B.22097 revises the 
State annual PM2.5 emissions standard from 15.0 [micro]g/
m\3\ to 12.0 [micro]g/m\3\ to be consistent with the 2012 
PM2.5 NAAQS.
    The current revision to NAC 445B.22096 aligns a reference to 
PM10 emissions with the new definition for PM10 
emissions in NAC 445B.1355, which strengthens the SIP by regulating 
condensable PM10 emissions. However, the EPA had previously 
disapproved a portion of NAC 445B.22096 in 2012 addressing the 
NOX averaging time and control type for units 1, 2, and 3 
and the NOX emission limit for unit 3 at the Reid Gardner 
Generating Station (RGGS).\20\ In addition to disapproving a portion of 
NAC 445B.22096 in 2012, the EPA promulgated a Federal Implementation 
Plan (FIP) to replace the disapproved portions of the rule.\21\ Since 
that time, RGGS has closed and the EPA has rescinded its FIP.\22\ 
Because of the facility's closure and decommission, the provisions 
covering emissions from RGGS are no longer applicable. Therefore, 
although the current revision to NAC 445B.22096 includes provisions for 
RGGS that the EPA previously disapproved, because RGGS has now closed, 
approving this rule into the SIP does not change the status of RGGS and 
otherwise strengthens the SIP by regulating condensable PM10 
emissions.
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    \20\ 77 FR 50936 (August 23, 2012).
    \21\ Id.
    \22\ The recission of the Nevada Regional Haze FIP was finalized 
in a rule published on October 26, 2018 (83 FR 54053).
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    As a general matter, rules in the SIP must be enforceable (see CAA 
section 110(a)(2)), must not interfere with applicable requirements 
concerning attainment and reasonable further progress or other CAA 
requirements (see CAA section 110(l)), and must not modify certain SIP 
control requirements in nonattainment areas without ensuring equivalent 
or greater emissions reductions (see CAA section 193). We have 
evaluated the NDEP's new and revised rules for compliance with CAA 
requirements for SIPs, set forth in CAA section 110(a)(2), and for 
compliance with CAA requirements for SIP revisions in CAA sections 
110(l) and 193. In general, the rules either strengthen the SIP or 
clarify certain terms in the SIP, as discussed in section III.B.2. of 
this proposed rulemaking and in our TSD. Based upon our analysis, we 
propose to find the NDEP rules meet the requirements of CAA sections 
110(a)(2), 110(l), and 193. Therefore, the EPA is proposing to approve 
the submitted new and revised rules into the Nevada SIP.

B. Exemptions; Conditional Approvals

1. Exemptions
    For emergency episode planning, the priority thresholds for 
classification of Air Quality Control Regions (AQCR) of a state are 
listed in 40 CFR 51.150. AQCRs classified Priority I, IA, or II are 
required to have SIP-approved emergency episode contingency plans, 
while those classified Priority III are not required to have plans.\23\ 
Classification of Nevada's AQCRs is located at 40 CFR 52.1471. However, 
there are currently no priority classifications for PM2.5. 
As explained in our TSD, we have instead relied upon 2009 guidance for 
the 2006 p.m.2.5 NAAQS, which includes recommendations for 
evaluating emergency episode requirements under the CAA.\24\ Under the 
2009 guidance, any AQCR with 24-hour PM2.5 ambient air 
concentrations above 140.4 [micro]g/m\3\ must have a SIP-approved 
emergency episode contingency plan under 110(a)(2)(G). The only AQCR in 
Nevada with ambient air concentrations above this level is the 
Northwest Nevada Intrastate AQCR, which had a maximum PM2.5 
24-hour concentration of 241.6 [micro]g/m\3\ in 2021.\25\ Washoe County 
and several counties within the jurisdiction of NDEP that are part of 
the Northwest Nevada Intrastate AQCR are therefore required to have 
SIP-approved contingency plans. While the NDEP and Washoe County have 
SIP-approved emergency episode contingency plans, only the Washoe 
County plan addresses PM2.5, whereas the NDEP plan does not. 
However, under 40 CFR 51.152(d)(1), the EPA may exempt from the 
emergency episode contingency plan requirements any AQCR that is in 
attainment for the relevant NAAQS. Because the Northwest Nevada 
Intrastate AQCR is in attainment for the 2012 PM2.5 
NAAQS,\26\ we are proposing to exempt the Northwest Nevada Intrastate 
AQCR from the contingency plan requirements of CAA section 
110(a)(2)(G).
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    \23\ 40 CFR 51.151 and 51.152.
    \24\ Memorandum from: William T. Harnett, Policy Division 
Director, EPA, to: Regional Air Division Directors, Regions I-X, 
Subject: 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), dated September 25, 
2009.
    \25\ The monitoring data are available in the docket for this 
proposal.
    \26\ 80 FR 2206 (January 15, 2015).
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2. Conditional Approvals
    CAA section 110(k)(4) authorizes the EPA to conditionally approve a 
plan revision based on a commitment by the state to adopt specific 
enforceable measures by a date certain but not later than one year 
after the date of the plan approval. In letters dated September 2, 2022 
and September 9, 2022, the NDEP and Washoe County committed to adopt 
and submit specific enforceable measures to address the identified

[[Page 63750]]

deficiencies under CAA section 110(a)(2)(J) discussed in Sections 
III.C. and IV.A. of this proposed rulemaking and in our TSD.\27\ 
Accordingly, pursuant to section 110(k)(4) of the Act, the EPA is 
proposing a conditional approval of the portions of the NDEP and Washoe 
County Infrastructure SIP Submittals addressing the public notification 
requirements of CAA section 110(a)(2)(J) for the 2012 PM2.5 
NAAQS.
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    \27\ Clark County has satisfied this requirement through Air 
Quality Regulation 4.5, approved into the SIP in a rule published on 
April 21, 2022 (87 FR 23765).
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    If the NDEP and Washoe County meet their commitments to submit the 
required revisions within 12 months of the EPA's final action on this 
SIP submittal, and the EPA approves the submission, then the 
deficiencies listed above will be cured. However, if the NDEP or Washoe 
County fails to submit these revisions within the required timeframe, 
the conditional approvals shall become disapprovals.

C. Proposed Partial Disapprovals

    The EPA proposes to disapprove Nevada's Infrastructure SIP 
Submittals with respect to the following infrastructure SIP 
requirements:
     110(a)(2)(C) (in part): Regulation of new and modified 
stationary sources (disapproval for the NDEP and Washoe County).
     110(a)(2)(D)(i)(II) (in part): interference with PSD 
(prong 3) (disapproval for the NDEP and Washoe County).
     110(a)(2)(D)(ii) (in part): interstate pollution abatement 
(disapproval for the NDEP and Washoe County).
     110(a)(2)(J) (in part): PSD (disapproval for the NDEP and 
Washoe County).
    As explained more fully in our TSD, we are proposing to disapprove 
the NDEP and Washoe County portions of Nevada's Infrastructure 
Submittals with respect to the PSD-related requirements of sections 
110(a)(2)(C), 110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), and 110(a)(2)(J). 
The Nevada SIP does not fully satisfy the statutory and regulatory 
requirements for PSD permit programs under part C, title I of the Act, 
because the NDEP and Washoe County do not currently have SIP-approved 
PSD programs. Although the NDEP and Washoe County portions of the SIP 
remain deficient with respect to PSD requirements, there would be no 
consequences of this proposed disapproval, as both agencies implement 
the Federal PSD program at 40 CFR 52.21 for all regulated NSR 
pollutants, pursuant to delegation agreements with the EPA.\28\
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    \28\ See 40 CFR 52.1485. The 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 
November 7, 2012, and to Washoe County on 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'').
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D. Deferred Action

    On August 12, 2022, NDEP withdrew its submittal of the Prong 4 
element in the 2015 Nevada Infrastructure SIP Submittal and submitted a 
revised Prong 4 element with the State's Regional Haze Plan for the 2nd 
Planning Period.\29\ The EPA intends to act on the revised Prong 4 
element when we act on Nevada's Regional Haze Plan for the 2nd Planning 
Period.
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    \29\ See letter dated August 12, 2022, from Greg Lovato, 
Administrator, Nevada Department of Environmental Protection, to 
Martha Guzman, Regional Administrator, EPA Region 9, re: The Nevada 
State Implementation Plan for the Regional Haze Rule for the Second 
Planning Period; Withdrawal and Replacement of Elements of the 2012 
PM2.5 NAAQS and 2015 Ozone NAAQS Infrastructure SIPs.
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E. Request for Public Comments

    The EPA is soliciting public comments on this proposed rulemaking. 
We will accept comments from the public for the next 30 days. We will 
consider any comments received before taking final action.

V. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference the NDEP rules listed in Table 2 and discussed in section 
III.B.2. of this preamble. The EPA has made, and will continue to make, 
these documents generally available electronically in the docket for 
this rulemaking at https://www.regulations.gov.

VII. Statutory and Executive Order Reviews

    Under the Clean Air Act, 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, the EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this proposed action merely proposes to approve state law 
as meeting Federal requirements and does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     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);
     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); and
     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 Clean Air Act.
    The State did not evaluate environmental justice considerations as 
part of its SIP submittal. There is no information in the record 
inconsistent with the stated goals of Executive Order 12898 of 
achieving environmental justice for people of color, low-income 
populations, and indigenous peoples.
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the rule does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).

List of Subjects in 40 CFR Part 52

    Approval and promulgation of implementation plans, Air pollution 
control, Environmental protection, Incorporation by reference, 
Intergovernmental relations, Particulate

[[Page 63751]]

matter, PM2.5, PM10, Reporting and recordkeeping 
requirements.

    Dated: October 15, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2022-22864 Filed 10-19-22; 8:45 am]
BILLING CODE 6560-50-P


