Partial Approval, Conditional Approval, and Partial Disapproval of Air Quality State Implementation Plans; Nevada; Infrastructure Requirements for Ozone, 1537-1543 [2023-00328]
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Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Proposed Rules
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and require emissions monitoring
consistent with the NOX SIP Call’s
general enforceability and monitoring
requirements.10 See 40 CFR 51.121(f)(2).
EPA is proposing to find that TDEC’s
submittal meets these requirements and
all other requirements of the CAA,
including 40 CFR 51.121(i)(1) and (4),
except that Tennessee additionally will
need to modify TAPCR 1200–03–
27.12(11) to specify permissible
alternative monitoring and reporting
methodologies within one year of the
effective date of EPA’s conditional
approval. Thus, EPA is proposing to
conditionally approve TDEC operating
permit No. 077509, state effective on
August 11, 2021, into Tennessee’s SIP
pursuant to CAA section 110(k)(4),
subject to TDEC’s specific commitment
to modify the provisions of TAPCR
1200–03–27.12(11) to specify
permissible alternative monitoring and
reporting methodologies within one
year of EPA’s conditional approval, as
described in TDEC’s submittal.
If Tennessee meets its commitment to
submit a SIP revision modifying the
provisions of TAPCR 1200–03–27.12(11)
to specify permissible alternative
monitoring and reporting
methodologies, as allowed under 40
CFR 51.121(i)(1) and (4), by 12 months
from the date of final approval of this
proposed action, TDEC operating permit
No. 077509 will remain a part of the
SIP. However, if the State fails to submit
this revision on or before 12 months
from the date of final approval of this
action, the conditional approval will
become a disapproval pursuant to CAA
section 110(k)(4).
IV. Incorporation by Reference
In this document, EPA is proposing to
include in a final EPA rule regulatory
text that includes incorporation by
reference. In accordance with the
requirements of 1 CFR 51.5, and as
discussed in Sections I through III of
this preamble, EPA is proposing to
incorporate by reference Tennessee Air
Pollution Control Board’s operating
permit No. 077509 for the Eastman
Chemical Company, state effective on
August 11, 2021. EPA has made, and
will continue to make, these materials
generally available through
www.regulations.gov and at the EPA
Region 4 Office (please contact the
person identified in the FOR FURTHER
INFORMATION CONTACT section of this
preamble for more information).
V. Proposed Action
EPA is proposing to conditionally
approve Tennessee Air Pollution
10 See
40 CFR 51.121(f)(2)(ii) and 51.121(i)(4).
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Control Board operating permit No.
077509 for the Eastman Chemical
Company, state effective August 11,
2021 for incorporation into the
Tennessee SIP. These changes were
submitted by Tennessee on August 11,
2021.
VI. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA and applicable Federal regulations.
See 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. This proposed action merely
proposes to conditionally 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 an impose 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);
• Is not subject to requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
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The SIP is not approved to apply on
any Indian reservation land or in any
other area where EPA or an Indian tribe
has demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the proposed rule does not
have tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), nor will it impose
substantial direct costs on tribal
governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone,
Reporting and recordkeeping
requirements.
(Authority: 42 U.S.C. 7401 et seq.)
Dated: December 30, 2022.
Daniel Blackman,
Regional Administrator, Region 4.
[FR Doc. 2022–28656 Filed 1–10–23; 8:45 am]
BILLING CODE 6560–50–P
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
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
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
SUMMARY:
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Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Proposed Rules
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
https://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,
Law.Nicole@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, the terms
‘‘we,’’ ‘‘us,’’ and ‘‘our’’ refer to EPA.
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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
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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
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.
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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.
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
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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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
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purport to allow revisions to SIPapproved 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 reapproval of any existing potentially
deficient provisions that relate to the
three specific issues just described.
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
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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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
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).
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course of addressing such deficiency in
a subsequent action.7
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 threeyear 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
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.
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
Agency
Submittal
Start of
public notice
Hearing date
Adoption date
NDEP .................................
The Nevada Division of Environmental Protection Portion of the Nevada State Implementation Plan for
the 2015 Ozone NAAQS: Demonstration of Adequacy.
The Clark County Portion of the State Implementation
Plan to Meet the Ozone Infrastructure SIP Requirements of Clean Air Act Section 110(a)(2).
The Washoe County Portion of the Nevada State Implementation Plan to Meet the Ozone Infrastructure
SIP Requirements of Clean Air Act Section
110(a)(2).
July 19, 2018 ......
None a .................
August 29, 2018.
July 2, 2018 .......
August 21, 2018
August 21, 2018.
June 20, 2018 ....
July 26, 2018 ......
July 26, 2018.
Clark County Board of
Commissioners.
Washoe County District
Board of Health.
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a The
hearing was tentatively scheduled for August 29, 2018, but cancelled because no one requested a hearing.
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).
8 80 FR 65292 (October 26, 2015).
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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
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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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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.
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
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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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 crossreferenced 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
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.
13 87 FR 63744 (October 20, 2022).
14 71 FR 15040 (March 27, 2006).
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.
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
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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 EPAapproved 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.
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
• 110(a)(2)(A): Emission limits and
other control measures.
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.’’
17 All approvals are full approvals for NDEP,
Clark County, and Washoe County except where
noted otherwise.
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1541
• 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.
Æ 110(a)(2)(D)(i)(II) (in part)—
interference with PSD (prong 3)
(approval for Clark County only).
Æ 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),
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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.
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.
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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).
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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• 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
D. Prior Action and Deferred Action
The EPA is addressing the following
Clean Air Act Requirements in separate
rulemakings: 20
• 110(a)(2)(D) (in part, see below):
Interstate Pollution Transport.
Æ 110(a)(2)(D)(i)(I)—significant
contribution to a nonattainment area
(prong 1).
Æ 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
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’’).
20 87 FR 20036 (April 6, 2022), 87 FR 29108 (May
12, 2022), 87 FR 31485 (May 24, 2022).
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
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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.
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).
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
2012 PM2.5 NAAQS and 2015 Ozone NAAQS
Infrastructure SIPs.’’
22 40 CFR 51.151 and 51.152.
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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 onehour 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.
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VI. Statutory and Executive Order
Reviews
Additional information about these
statutes and Executive Orders can be
found at https://www.epa.gov/lawsregulations/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.
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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
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1543
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
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 81
[EPA–R09–OAR–2022–0953; FRL–10502–
01–R9]
Designation of Areas for Air Quality
Planning Purposes; California;
Coachella Valley Ozone Nonattainment
Area; Reclassification to Extreme
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
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]]>Agencies
[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]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 https://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
[[Page 1539]]
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
--------------------------------------------------------------------------------------------------------------------------------------------------------
Agency Submittal Start of public notice Hearing date Adoption date
--------------------------------------------------------------------------------------------------------------------------------------------------------
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).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ The hearing was tentatively scheduled for August 29, 2018, but cancelled because no one requested a hearing.
[[Page 1541]]
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 https://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
