[Federal Register Volume 88, Number 7 (Wednesday, January 11, 2023)]
[Proposed Rules]
[Pages 1537-1543]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00328]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2022-0957; FRL-10543-01-R9]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The 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 2015 national ambient air quality 
standards (NAAQS) for ozone. As part of this action, we are proposing 
to reclassify a region of the State for emergency episode planning 
purposes with respect to ozone. Finally, we are proposing to approve a 
regulatory revision 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 February 10, 
2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2022-0957 at https://www.regulations.gov. For comments

[[Page 1538]]

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) 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 http://www2.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: Nicole Law, Air Planning Office (AIR-
2), U.S. Environmental Protection Agency, Region IX, (415) 947-4126, 
[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. Revised Rule
    C. Commitment Letters
IV. The EPA's Evaluation and Proposed Action
    A. Proposed Approvals and Partial Approvals
    B. Conditional Approvals
    C. Proposed Partial Disapprovals
    D. Prior Action and Deferred Action
    E. Proposed Reclassification for Emergency Episode Planning
    F. 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 2015 ozone 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 affect 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

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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 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 
(GHGs). 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 NAAQS for particulate 
matter of 2.5 micrometers or less (PM2.5). 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,'' 67 FR 80186, December 31, 2002, 
as amended by 72 FR 32526, June 13, 2007 (``NSR Reform''). 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.\4\ 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\ 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.\5\ Section 
110(k)(6) authorizes the EPA to correct errors in past actions, such as 
past approvals of SIP submittals.\6\ 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

[[Page 1540]]

course of addressing such deficiency in a subsequent action.\7\
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    \5\ 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.
    \6\ 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).
    \7\ 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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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 October 26, 2015, the EPA promulgated a revised NAAQS for ozone, 
(``the 2015 ozone NAAQS''), triggering a requirement for states to 
submit infrastructure SIPs within three years of promulgation of the 
revised NAAQS. The 2015 ozone NAAQS revised the 2008 8-hour ozone NAAQS 
by lowering the primary and secondary 8-hour ozone standards from 75 
parts per billion (ppb) to 70 ppb.\8\
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    \8\ 80 FR 65292 (October 26, 2015).
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III. State Submittal

A. Infrastructure SIP Submittal

    The Nevada Division of Environmental Protection (NDEP) submitted a 
SIP revision addressing the infrastructure SIP requirements for the 
2015 ozone NAAQS on September 28, 2018 (``Nevada's Infrastructure SIP 
Submittal'').\9\ It included separate sections for Clark County \10\ 
and Washoe County.\11\ 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 March 28, 2019.
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    \9\ Although NDEP submitted Nevada's Infrastructure SIP 
Submittal electronically on September 28, 2018, the submittal letter 
is dated October 1, 2018, from Greg Lovato, Administrator, Nevada 
Division of Environmental Protection, to Mike Stoker, Regional 
Administrator, U.S. EPA Region IX, RE: ``The Nevada State 
Implementation Plan for the 2015 Primary and Secondary Ozone 
NAAQS.''
    \10\ Letter dated September 12, 2018, from Marci Henson, 
Director, Clark County Department of Air Quality, to Greg Lovato, 
Administrator, Nevada Division of Environmental Protection, RE: 
``Clark County Portion of the Nevada Infrastructure State 
Implementation Plan for the 2015 Ozone NAAQS.''
    \11\ Letter dated August 28, 2018, from Charlene Albee, 
Director, Washoe County Health District Air Quality Management 
Division, to Greg Lovato, Administrator, Nevada Division of 
Environmental Protection, Subject: ``2015 Ozone National Ambient Air 
Quality Standard Infrastructure State Implementation Plan (SIP).''
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    As noted in each respective portion of the submittal, 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...............................  The Nevada Division of       July 19, 2018...............  None \a\...................  August 29, 2018.
                                      Environmental Protection
                                      Portion of the Nevada
                                      State Implementation Plan
                                      for the 2015 Ozone NAAQS:
                                      Demonstration of Adequacy.
Clark County Board of Commissioners  The Clark County Portion of  July 2, 2018................  August 21, 2018............  August 21, 2018.
                                      the State Implementation
                                      Plan to Meet the Ozone
                                      Infrastructure SIP
                                      Requirements of Clean Air
                                      Act Section 110(a)(2).
Washoe County District Board of      The Washoe County Portion    June 20, 2018...............  July 26, 2018..............  July 26, 2018.
 Health.                              of the Nevada State
                                      Implementation Plan to
                                      Meet the Ozone
                                      Infrastructure SIP
                                      Requirements of Clean Air
                                      Act Section 110(a)(2).
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\a\ The hearing was tentatively scheduled for August 29, 2018, but cancelled because no one requested a hearing.


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B. Revised Rule

    In Nevada's Infrastructure SIP Submittal, NDEP included a revised 
version of Nevada Administrative Code (NAC) 445B.22097 for 
incorporation into the Nevada SIP.\12\ For the revised rule, NDEP 
included documentation of the public comment period; the public hearing 
on February 21, 2018; and proof adoption by the State Environmental 
Commission.
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    \12\ See Enclosure NDEP 2015 Ozone NAAQS Infrastructure SIP, 
October 1, 2018, Nevada Division of Environmental Protection Proof 
of Adoption of the 2015 Ozone Standard into the Nevada 
Administrative Code (NAC) for Approval into the Applicable Nevada 
SIP.
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1. What Rule Did the State Submit
    NDEP adopted an amendment to NAC 445B.22097, ``Standards of quality 
for ambient air'' on February 21, 2018 and submitted it to the EPA on 
September 28, 2018. On October 20, 2022, the EPA proposed approval into 
the SIP of a version of the rule adopted on October 27, 2015.\13\ A 
revision to NAC 445B.22097 was last approved into the SIP on March 27, 
2006.\14\
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    \13\ 87 FR 63744 (October 20, 2022).
    \14\ 71 FR 15040 (March 27, 2006).
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2. What Is the Purpose of the Submitted Rule Revision
    The regulation was amended ``to align [Nevada's regulations] with 
the national ambient air quality standards (NAAQS) currently in 
effect.'' \15\ The change to NAC 445B.22097 submitted with Nevada's 
Infrastructure SIP Submittal would lower the State's 8-hour ozone 
standard from 0.075 to 0.070 parts per million (ppm), consistent with 
the 2015 Ozone NAAQS.
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    \15\ 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 February 21, 2018.
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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.\16\ 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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    \16\ Letter dated September 9, 2022, 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.'' and Letter dated September 
2, 2022, 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.''
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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), 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 notices and TSDs for Nevada 
Infrastructure SIP submissions, which are included in the docket for 
this rulemaking.
    Based on the analysis in this document and discussed in detail in 
our TSD, we propose to approve Nevada's Infrastructure SIP Submittal 
with respect to the following Clean Air Act requirements: \17\
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    \17\ All approvals are full approvals for NDEP, Clark County, 
and Washoe County except where noted otherwise.
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     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, see below): Interstate Pollution 
Transport.
    [cir] 110(a)(2)(D)(i)(II) (in part)--interference with PSD (prong 
3) (approval for Clark County only).
    [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, full approval for Clark County), and PSD and visibility 
protection (full 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 a state regulation into the 
Nevada SIP. Specifically, we propose to approve into the SIP a new 
version of NAC 445B.22097, which revises the 8-hour ozone standard in 
the Nevada standards table from 0.075 to 0.070 parts per million (ppm) 
to be consistent with the 2015 ozone NAAQS and deletes the ``National 
Standards'' and ``Method'' columns because both are for reference only 
and are often out-of-date compared to the referenced federal 
regulations.
    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 NDEP's revised rule for compliance with CAA requirements for 
SIPs, set forth in CAA section 110(a)(2),

[[Page 1542]]

and for compliance with CAA requirements for SIP revisions in CAA 
sections 110(l) and 193. In general, the rule strengthens the SIP, as 
discussed in section III.B.2. of this document. Based upon our 
analysis, we propose to find NAC 445B.22097 meets the requirements of 
CAA sections 110(a)(2), 110(l), and 193. Therefore, the EPA is 
proposing to approve the submitted revision to NAC 445B.22097 into the 
Nevada SIP.

B. Conditional Approvals

1. 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, NDEP and Washoe County committed to adopt and 
submit specific enforceable measures to address the identified 
deficiencies under CAA section 110(a)(2)(J) discussed in Sections 
III.C. and IV.A. of this proposed rulemaking and in our TSD.\18\ 
Accordingly, pursuant to section 110(k)(4) of the Act, the EPA is 
proposing a conditional approval of the NDEP and Washoe County portions 
of Nevada's Infrastructure SIP Submittal addressing the public 
notification requirements of CAA section 110(a)(2)(J) for the 2015 
Ozone NAAQS.
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    \18\ 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 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 NDEP and/or Washoe 
County fail 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 
Submittal with respect to the following infrastructure SIP 
requirements:
     110(a)(2)(C) (in part): Regulation of new and modified 
stationary sources (disapproval for NDEP and Washoe County).
     110(a)(2)(D)(i)(II) (in part): interference with PSD 
(prong 3) (disapproval for NDEP and Washoe County).
     110(a)(2)(D)(ii) (in part): interstate pollution abatement 
(disapproval for NDEP and Washoe County).
     110(a)(2)(J) (in part): PSD (disapproval for 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 SIP 
Submittal 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 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 
further consequences if the action is finalized as proposed, as both 
agencies already implement the federal PSD program at 40 CFR 52.21 for 
all regulated NSR pollutants, pursuant to delegation agreements with 
the EPA.\19\
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    \19\ 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. Prior Action and Deferred Action

    The EPA is addressing the following Clean Air Act Requirements in 
separate rulemakings: \20\
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    \20\ 87 FR 20036 (April 6, 2022), 87 FR 29108 (May 12, 2022), 87 
FR 31485 (May 24, 2022).
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     110(a)(2)(D) (in part, see below): 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)--significant contribution to a maintenance 
area (prong 2).
    Additionally, on August 12, 2022, NDEP withdrew its submittal of 
the Prong 4 element in Nevada's Infrastructure SIP Submittal and 
submitted a revised Prong 4 element with the State's Regional Haze Plan 
for the 2nd Planning Period.\21\ 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 and is therefore not acting on the requirement as part 
of this action.
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    \21\ 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. Proposed Reclassification for Emergency Episode Planning

    The priority thresholds for classification of air quality control 
regions are listed in 40 CFR 51.150, and the specific classifications 
of air quality control regions in Nevada are listed at 40 CFR 52.1471. 
Consistent with the provisions of 40 CFR 51.153, reclassification of an 
air quality control region must rely on the most recent three years of 
air quality data. Under 40 CFR 51.151 and 51.152, regions classified 
Priority I are required to have SIP-approved emergency episode 
contingency plans, while those classified Priority III are not required 
to have such plans.\22\ We interpret 40 CFR 51.153 as establishing the 
means for states to review air quality data and request a higher or 
lower classification for any given region and as providing the 
regulatory basis for the EPA to reclassify such regions, as 
appropriate, under the authorities of CAA sections 110(a)(2)(G) and 
301(a)(1).
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    \22\ 40 CFR 51.151 and 51.152.
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    The priority classification threshold for ozone under 40 CFR 51.150 
is 195 micrograms per cubic meter, equivalent to 0.10 parts per million 
(ppm), calculated as a one-hour maximum. Regions with one-hour ozone 
concentrations greater than 0.10 ppm are classified as Priority I for 
ozone under 40 CFR 51.150. All other regions are classified as Priority 
III for ozone. Nevada's regional priority classifications for ozone 
under 40 CFR 51.150 are located at 40 CFR 52.1471. Currently, the Las 
Vegas Intrastate air quality control region (AQCR) is classified as 
Priority I for ozone. The Northwest Nevada Intrastate AQCR and Nevada 
Intrastate AQCR are currently classified as Priority III for ozone.
    Air quality data from 2019-2021 indicate that the maximum one-hour 
ozone concentrations monitored in two Nevada regions exceed the 
Priority I threshold for one-hour ozone. The maximum one-hour ozone 
concentration measured in the Las Vegas Intrastate AQCR in this period 
was 0.104 ppm; the maximum one-hour ozone concentration measured in the 
Northwest Nevada Intrastate AQCR in this period was 0.106 ppm. We are 
proposing to reclassify the Northwest Nevada Intrastate AQCR from 
Priority III

[[Page 1543]]

to Priority I for ozone and to retain the classification of the Las 
Vegas Intrastate AQCR as Priority I.
    Air quality data from 2019-2021 also indicate that the maximum one-
hour ozone concentration monitored in the Nevada Intrastate AQCR does 
not exceed the Priority I threshold for one-hour ozone. The maximum 
one-hour ozone concentration monitored in this region from 2019-2021 
was 0.099 ppm. We are therefore not reclassifying the Nevada Intrastate 
AQCR priority classification and it remains as Priority III for ozone.
    If finalized as proposed, the reclassification of the Northwest 
Nevada Intrastate AQCR from Priority III to Priority I for ozone will 
not generate new requirements for Nevada to submit an emergency episode 
contingency plan because NDEP and Washoe County--the two agencies with 
jurisdiction over the AQCR--already have SIP-approved emergency episode 
plans. Thus, our proposed reclassification of the Northwest Nevada 
Intrastate AQCR for ozone also does not affect our proposed approval of 
the Nevada SIP with respect to CAA section 110(a)(2)(G) for the 2015 
ozone NAAQS.

F. 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 rule described in section III.B.1. 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.

VI. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at http://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA because this action does not impose additional requirements 
beyond those imposed by state law.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities beyond those 
imposed by state law.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. This action does not impose additional requirements 
beyond those imposed by state law. Accordingly, no additional costs to 
state, local, or tribal governments, or to the private sector, will 
result from this action.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175, because 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, and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law. Thus, Executive Order 13175 does not apply to this action.

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

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it does not impose additional 
requirements beyond those imposed by state law.

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

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA directs the EPA to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. The EPA 
believes that this action is not subject to the requirements of section 
12(d) of the NTTAA because application of those requirements would be 
inconsistent with the CAA.

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

    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 E.O. 12898 of achieving 
environmental justice for people of color, low-income populations, and 
indigenous peoples.

List of Subjects in 40 CFR Part 52

    Approval and promulgation of implementation plans, Air pollution 
control, Environmental protection, Incorporation by reference, 
Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: January 5, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2023-00328 Filed 1-10-23; 8:45 am]
BILLING CODE 6560-50-P


