[Federal Register Volume 77, Number 150 (Friday, August 3, 2012)]
[Proposed Rules]
[Pages 46361-46371]
[FR Doc No: 2012-19015]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

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

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

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

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

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

FOR FURTHER INFORMATION CONTACT: Rory Mays, Air Planning Office (AIR-
2), U.S. Environmental Protection Agency, Region IX,<PHONE_NUMBER>,
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,''
``us,'' and ``our'' refer to EPA.

Table of Contents

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

I. Background

I.A. Statutory Framework

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

I.B. Regulatory History

    On July 18, 1997, EPA issued a revised NAAQS for ozone \1\ and a
new NAAQS for fine particulate matter (PM2.5).\2\ EPA
subsequently revised the 24-hour PM2.5 NAAQS on September
21, 2006.\3\ Each of these actions triggered a requirement for states
to submit an infrastructure SIP to address the applicable requirements
of section 110(a)(2) within three years of issuance of the new or
revised NAAQS.
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    \1\ The 8-hour averaging period replaced the previous 1-hour
averaging period, and the level of the NAAQS was changed from 0.12
parts per million (ppm) to 0.08 ppm (62 FR 38856).
    \2\ The annual PM2.5 standard was set at 15
micrograms per cubic meter ([mu]g/m\3\), based on the 3-year average
of annual arithmetic mean PM2.5 concentrations from
single or multiple community-oriented monitors and the 24-hour
PM2.5 standard was set at 65 [micro]g/m\3\, based on the
3-year average of the 98th percentile of 24-hour PM2.5
concentrations at each population-oriented monitor within an area
(62 FR 38652).
    \3\ The final rule revising the 24-hour NAAQS for
PM2.5 from 65 [micro]g/m\3\ to 35 [micro]g/m\3\ was
published in the Federal Register on October 17, 2006 (71 FR 61144).
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    On March 10, 2005, EPA entered into a Consent Decree with
EarthJustice that obligated EPA to make official findings in accordance
with section 110(k)(1) of the CAA as to whether states had made
required complete SIP submissions, pursuant to sections 110(a)(1) and
110(a)(2), by December 15, 2007 for the 1997 8-hour ozone NAAQS and by
October 5, 2008 for the 1997 PM2.5 NAAQS. EPA made such
findings for the 1997 ozone NAAQS, as published on March 27, 2008 (73
FR 16205), and for the 1997 PM2.5 NAAQS, as published on
October 22, 2008 (73 FR 62902). For the 1997 ozone NAAQS, EPA found
that Nevada had failed to make a complete submittal to address the
requirements of section 110(a)(2).\4\ For the 1997 PM2.5
NAAQS, EPA found that Nevada had made a complete submittal to address
the requirements of section 110(a)(2).
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    \4\ Notwithstanding EPA's finding of failure to submit, footnote
2 of the findings notice noted that Nevada had submitted its
infrastructure SIP for the 1997 ozone NAAQS on February 1, 2008.
(See 73 FR 16205 at 16207).
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I.C. Scope of the Infrastructure SIP Evaluation

    EPA is currently acting upon SIPs that address the infrastructure
requirements of CAA section 110(a)(1) and (2) for ozone and
PM2.5 NAAQS for various states across the country.
Commenters on EPA's recent proposals for some states raised concerns
about EPA statements that it was not addressing certain substantive
issues in the context

of acting on those infrastructure SIP submissions.\5\ Those commenters
specifically raised concerns involving provisions in existing SIPs and
with EPA's statements in other proposals that it would address two
issues separately and not as part of actions on the infrastructure SIP
submissions: (i) Existing provisions related to excess emissions during
periods of start-up, shutdown, or malfunction at sources, that may be
contrary to the CAA and EPA's policies addressing such excess emissions
(``SSM''); and (ii) existing provisions related to ``director's
variance'' or ``director's discretion'' that purport to permit
revisions to SIP approved emissions limits with limited public process
or without requiring further approval by EPA, that may be contrary to
the CAA (``director's discretion''). EPA notes that there are two other
substantive issues for which EPA likewise stated in other proposals
that it would address the issues separately: (i) Existing provisions
for minor source new source review programs that may be inconsistent
with the requirements of the CAA and EPA's regulations that pertain to
such programs (``minor source NSR''); and (ii) existing provisions for
Prevention of Significant Deterioration programs that may be
inconsistent with current requirements of EPA's ``Final NSR Improvement
Rule,'' 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526
(June 13, 2007) (``NSR Reform''). In light of the comments, EPA
believes that its statements in various proposed actions on
infrastructure SIPs with respect to these four individual issues should
be explained in greater depth.
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    \5\ See, Comments of Midwest Environmental Defense Center, dated
May 31, 2011. Docket  EPA-R05-OAR-2007-1179 (adverse
comments on proposals for three states in Region 5).
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    EPA intended the statements in other proposals concerning these
four issues merely to be informational, and to provide general notice
of the potential existence of provisions within the existing SIPs of
some states that might require future corrective action. EPA did not
want states, regulated entities, or members of the public to be under
the misconception that the Agency's approval of the infrastructure SIP
submission of a given state should be interpreted as a reapproval of
certain types of provisions that might exist buried in the larger
existing SIP for such state. Thus, for example, EPA explicitly noted
that the Agency believes that some states may have existing SIP-
approved SSM provisions that are contrary to the CAA and EPA policy,
but that ``in this rulemaking, EPA is not proposing to approve or
disapprove any existing State provisions with regard to excess
emissions during SSM of operations at facilities.'' EPA further
explained, for informational purposes, that ``EPA plans to address such
State regulations in the future.'' EPA made similar statements, for
similar reasons, with respect to the director's discretion, minor
source NSR, and NSR Reform issues. EPA's objective was to make clear
that approval of an infrastructure SIP for these NAAQS should not be
construed as explicit or implicit reapproval of any existing provisions
that relate to these four substantive issues.
    Unfortunately, the commenters and others evidently interpreted
these statements to mean that EPA considered action upon the SSM
provisions and the other three substantive issues to be integral parts
of acting on an infrastructure SIP submission, and therefore that EPA
was merely postponing taking final action on the issues in the context
of the infrastructure SIPs. This was not EPA's intention. To the
contrary, EPA only meant to convey its awareness of the potential for
certain types of deficiencies in existing SIPs, and to prevent any
misunderstanding that it was reapproving any such existing provisions.
EPA's intention was to convey its position that the statute does not
require that infrastructure SIPs address these specific substantive
issues in existing SIPs and that these issues may be dealt with
separately, outside the context of acting on the infrastructure SIP
submission of a state. To be clear, EPA did not mean to imply that it
was not taking a full final agency action on the infrastructure SIP
submission with respect to any substantive issue that EPA considers to
be a required part of acting on such submissions under section 110(k)
or under section 110(c). Given the confusion evidently resulting from
EPA's statements in those other proposals, however, we want to explain
more fully the Agency's reasons for concluding that these four
potential substantive issues in existing SIPs may be addressed
separately from actions on infrastructure SIP submissions.
    Although section 110(a)(1) addresses the timing and general
requirements for these infrastructure SIPs, and section 110(a)(2)
provides more details concerning the required contents of these
infrastructure SIPs, EPA believes that many of the specific statutory
provisions are facially ambiguous. In particular, the list of required
elements provided in section 110(a)(2) contains a wide variety of
disparate provisions, some of which pertain to required legal
authority, some of which pertain to required substantive provisions,
and some of which pertain to requirements for both authority and
substantive provisions.\6\ Some of the elements of section 110(a)(2)
are relatively straightforward, but others clearly require
interpretation by EPA through rulemaking, or recommendations through
guidance, in order to give specific meaning for a particular NAAQS.\7\
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    \6\ For example, section 110(a)(2)(E) provides that states must
provide assurances that they have adequate legal authority under
state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a substantive program to address
certain sources as required by part C of the CAA; section
110(a)(2)(G) provides that states must have both legal authority to
address emergencies and substantive contingency plans in the event
of such an emergency.
    \7\ For example, section 110(a)(2)(D)(i) requires EPA to be sure
that each state's SIP contains adequate provisions to prevent
significant contribution to nonattainment of the NAAQS in other
states. This provision contains numerous terms that require
substantial rulemaking by EPA in order to determine such basic
points as what constitutes significant contribution. See, e.g.,
``Rule To Reduce Interstate Transport of Fine Particulate Matter and
Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program;
Revisions to the NOX SIP Call; Final Rule,'' 70 FR 25,162
(May 12, 2005)(defining, among other things, the phrase ``contribute
significantly to nonattainment'').
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    Notwithstanding that section 110(a)(2) provides that ``each'' SIP
submission must meet the list of requirements therein, EPA has long
noted that this literal reading of the statute is internally
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met on the schedule provided for
these SIP submissions in section 110(a)(1).\8\ This illustrates that
EPA must determine which provisions of section 110(a)(2) may be
applicable for a given infrastructure SIP submission. Likewise, EPA has
previously decided that it could take action on different parts of the
larger, general ``infrastructure SIP'' for a given NAAQS without
concurrent action on all subsections.\9\ Finally, EPA

notes that not every element of section 110(a)(2) would be relevant, or
as relevant, or relevant in the same way, for each new or revised NAAQS
and the attendant infrastructure SIP submission for that NAAQS. For
example, the monitoring requirements that might be necessary for
purposes of section 110(a)(2)(B) for one NAAQS could be very different
than what might be necessary for a different pollutant. Thus, the
content of an infrastructure SIP submission to meet this element from a
state might be very different for an entirely new NAAQS, versus a minor
revision to an existing NAAQS.\10\
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    \8\ See, e.g., Id., 70 FR 25,162, at 63-65 (May 12, 2005)
(explaining relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
    \9\ For example, EPA issued separate guidance to states with
respect to SIP submissions to meet section 110(a)(2)(D)(i) for the
1997 8-hour ozone and 1997 PM2.5 NAAQS. See, ``Guidance
for State Implementation Plan (SIP) Submissions to Meet Current
Outstanding Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour
Ozone and PM2.5 National Ambient Air Quality Standards,''
from William T. Harnett, Director Air Quality Policy Division OAQPS,
to Regional Air Division Director, Regions I-X, dated August 15,
2006. In addition, EPA bifurcated the action on these ``interstate
transport'' provisions within section 110(a)(2) and in most
instances, substantive administrative actions occurred on different
tracks with different schedules.
    \10\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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    Similarly, EPA notes that other types of SIP submissions required
under the statute also must meet the requirements of section 110(a)(2),
and this also demonstrates the need to identify the applicable elements
for other SIP submissions. For example, nonattainment SIPs required by
part D likewise have to meet the relevant subsections of section
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear
that nonattainment SIPs would not need to meet the portion of section
110(a)(2)(C) that pertains to part C, i.e., the PSD requirements
applicable in attainment areas. Nonattainment SIPs required by part D
also would not need to address the requirements of section 110(a)(2)(G)
with respect to emergency episodes, as such requirements would not be
limited to nonattainment areas. As this example illustrates, each type
of SIP submission may implicate some subsections of section 110(a)(2)
and not others.
    Given the potential for ambiguity of the statutory language of
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA
to interpret that language in the context of acting on the
infrastructure SIPs for a given NAAQS. Because of the inherent
ambiguity of the list of requirements in section 110(a)(2), EPA has
adopted an approach in which it reviews infrastructure SIPs against
this list of elements ``as applicable.'' In other words, EPA assumes
that Congress could not have intended that each and every SIP
submission, regardless of the purpose of the submission or the NAAQS in
question, would meet each of the requirements, or meet each of them in
the same way. EPA elected to use guidance to make recommendations for
infrastructure SIPs for these ozone and PM2.5 NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS
and the 1997 PM2.5 NAAQS.\11\ Within this guidance document,
EPA described the duty of states to make these submissions to meet what
the Agency characterized as the ``infrastructure'' elements for SIPs,
which it further described as the ``basic SIP requirements, including
emissions inventories, monitoring, and modeling to assure attainment
and maintenance of the standards.'' \12\ As further identification of
these basic structural SIP requirements, ``attachment A'' to the
guidance document included a short description of the various elements
of section 110(a)(2) and additional information about the types of
issues that EPA considered germane in the context of such
infrastructure SIPs. EPA emphasized that the description of the basic
requirements listed on attachment A was not intended ``to constitute an
interpretation of'' the requirements, and was merely a ``brief
description of the required elements.'' \13\ EPA also stated its belief
that with one exception, these requirements were ``relatively self
explanatory, and past experience with SIPs for other NAAQS should
enable States to meet these requirements with assistance from EPA
Regions.'' \14\ For the one exception to that general assumption,
however, i.e., how states should proceed with respect to the
requirements of section 110(a)(2)(G) for the 1997 PM2.5
NAAQS, EPA gave much more specific recommendations. But for other
infrastructure SIP submittals, and for certain elements of the
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each
State would work with its corresponding EPA regional office to refine
the scope of a State's submittal based on an assessment of how the
requirements of section 110(a)(2) should reasonably apply to the basic
structure of the State's SIP for the NAAQS in question.
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    \11\ See, ``Guidance on SIP Elements Required Under Section
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards,'' from William T. Harnett,
Director Air Quality Policy Division, to Air Division Directors,
Regions I-X, dated October 2, 2007 (the ``2007 Guidance'').
    \12\ Id. at page 2.
    \13\ Id. at attachment A, page 1.
    \14\ Id. at page 4. In retrospect, the concerns raised by
commenters with respect to EPA's approach to some substantive issues
indicate that the statute is not so ``self explanatory,'' and indeed
is sufficiently ambiguous that EPA needs to interpret it in order to
explain why these substantive issues do not need to be addressed in
the context of infrastructure SIPs and may be addressed at other
times and by other means.
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    On September 25, 2009, EPA issued guidance to make recommendations
to states with respect to the infrastructure SIPs for the 2006
PM2.5 NAAQS.\15\ In the 2009 Guidance, EPA addressed a
number of additional issues that were not germane to the infrastructure
SIPs for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, but
were germane to these SIP submissions for the 2006 PM2.5
NAAQS. Significantly, neither the 2007 Guidance nor the 2009 Guidance
explicitly referred to the SSM, director's discretion, minor source
NSR, or NSR Reform issues as among specific substantive issues EPA
expected states to address in the context of the infrastructure SIPs,
nor did EPA give any more specific recommendations with respect to how
states might address such issues even if they elected to do so. The SSM
and director's discretion issues implicate section 110(a)(2)(A), and
the minor source NSR and NSR Reform issues implicate section
110(a)(2)(C). In the 2007 Guidance and the 2009 Guidance, however, EPA
did not indicate to states that it intended to interpret these
provisions as requiring a substantive submission to address these
specific issues in existing SIP provisions in the context of the
infrastructure SIPs for these NAAQS. Instead, EPA's 2007 Guidance
merely indicated its belief that the states should make submissions in
which they established that they have the basic SIP structure necessary
to implement, maintain, and enforce the NAAQS. EPA believes that states
can establish that they have the basic SIP structure, notwithstanding
that there may be potential deficiencies within the existing SIP.
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    \15\ See, ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS),''
from William T, Harnett, Director Air Quality Policy Division, to
Regional Air Division Directors, Regions I-X, dated September 25,
2009 (the ``2009 Guidance'').
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    EPA believes that this approach to the infrastructure SIP
requirement is reasonable, because it would not be feasible to read
section 110(a)(1) and (2) to require a comprehensive review of each and
every provision of an existing SIP merely for purposes of assuring that
the state in question has the basic structural elements for a
functioning SIP for a new or revised NAAQS. Because SIPs have grown by
accretion over the decades as statutory and regulatory requirements
under the CAA have evolved, they may include some outmoded provisions
and historical artifacts that, while not fully up to date, nevertheless
may not pose a significant problem for the purposes of
``implementation, maintenance, and

enforcement'' of a new or revised NAAQS when EPA considers the overall
effectiveness of the SIP. To the contrary, EPA believes that a better
approach is for EPA to determine which specific SIP elements from
section 110(a)(2) are applicable to an infrastructure SIP for a given
NAAQS, and to focus attention on those elements that are most likely to
need a specific SIP revision in light of the new or revised NAAQS.
Thus, for example, EPA's 2007 Guidance specifically directed states to
focus on the requirements of section 110(a)(2)(G) for the 1997
PM2.5 NAAQS because of the absence of underlying EPA
regulations for emergency episodes for this NAAQS and an anticipated
absence of relevant provisions in existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of
section 110(a)(1) and (2) because the statute provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow the Agency to take appropriate
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a state's SIP is
substantially inadequate to attain or maintain the NAAQS, to mitigate
interstate transport, or otherwise to comply with the CAA.\16\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\17\ Significantly, EPA's
determination that an action on the infrastructure SIP is not the
appropriate time and place to address all potential existing SIP
problems does not preclude the Agency's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action at a
later time. For example, although it may not be appropriate to require
a state to eliminate all existing inappropriate director's discretion
provisions in the course of acting on the infrastructure SIP, EPA
believes that section 110(a)(2)(A) may be among the statutory bases
that the Agency cites in the course of addressing the issue in a
subsequent action.\18\
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    \16\ EPA has recently issued a SIP call to rectify a specific
SIP deficiency related to the SSM issue. See, ``Finding of
Substantial Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revision,'' 76 FR 21,639 (April 18, 2011).
    \17\ EPA has recently utilized this authority to correct errors
in past actions on SIP submissions related to PSD programs. See,
``Limitation of Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas Emitting-Sources in State
Implementation Plans; Final Rule,'' 75 FR 82,536 (December 30,
2010). EPA has previously used its authority under CAA 110(k)(6) to
remove numerous other SIP provisions that the Agency determined it
had approved in error. See, e.g., 61 FR 38,664 (July 25, 1996) and
62 FR 34,641 (June 27, 1997) (corrections to American Samoa,
Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67,062
(November 16, 2004) (corrections to California SIP); and 74 FR
57,051 (November 3, 2009) (corrections to Arizona and Nevada SIPs).
    \18\ EPA has recently disapproved a SIP submission from Colorado
on the grounds that it would have included a director's discretion
provision inconsistent with CAA requirements, including section
110(a)(2)(A). See, e.g., 75 FR 42,342 at 42,344 (July 21, 2010)
(proposed disapproval of director's discretion provisions); 76 FR
4,540 (January 26, 2011) (final disapproval of such provisions).
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II. The State's Submittals

    On February 1, 2008, the Nevada Division of Environmental
Protection (NDEP) submitted the ``CAA 110(a)(2)(A)-(M) Requirements in
the Current Nevada State Implementation Plan (SIP) for 8-Hour Ozone''
to address the infrastructure SIP requirements for the 1997 ozone NAAQS
(``2008 Ozone Submittal'').\19\ On February 26, 2008, NDEP submitted
the ``CAA 110(a)(2)(A)-(M) Requirements in the Current Nevada State
Implementation Plan (SIP) for PM2.5'' to address the
infrastructure SIP requirements for the 1997 PM2.5 NAAQS
(``2008 PM2.5 Submittal'').\20\ On September 15, 2009, NDEP
submitted the ``CAA 110(a)(2)(A)-(M) Requirements in the Current Nevada
State Implementation Plan (SIP) for PM2.5'' to address the
infrastructure SIP requirements for the 2006 PM2.5 NAAQS
(``2009 PM2.5 Submittal'').\21\ Each of these three
submittals included a cover letter from the NDEP Administrator to the
Region IX Regional Administrator, a table listing the elements of CAA
section 110(a)(2) followed by NDEP's discussion of the provisions in
the existing Nevada SIP that address each element, and attachments that
compile the State rules and statutes that are currently approved into
the Nevada SIP.
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    \19\ See letter dated February 1, 2008 from Leo M. Drozdoff,
Administrator, NDEP, to Wayne Nastri, Regional Administrator, EPA
Region 9.
    \20\ See letter dated February 26, 2008 from Leo M. Drozdoff,
Administrator, NDEP, to Wayne Nastri, Regional Administrator, EPA
Region 9.
    \21\ See letter dated September 15, 2009 from Leo M. Drozdoff,
Administrator, NDEP, to Laura Yoshii, Acting Regional Administrator,
EPA Region 9.
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    On December 4, 2009, NDEP submitted the ``Current CAA 110(a)(2)(A)-
(M) Requirements in the Washoe County Portion of the Nevada
PM2.5 SIP'' to address the infrastructure SIP requirements
for the 2006 PM2.5 NAAQS for the Washoe County portion of
the State (``2009 PM2.5 Supplement'').\22\ Like the three
earlier submittals, the 2009 PM2.5 Supplement contained a
table listing the elements of CAA section 110(a)(2) followed by Washoe
County's discussion of the provisions in the existing (Washoe County
portion of the) Nevada SIP that address each element, and attachments
that include the Washoe County District Board of Health (DBOH) air
pollution control regulations cited in the County's evaluation of the
adequacy of the existing SIP for Washoe County in meeting the
infrastructure SIP requirements for PM2.5,\23\ the PSD
delegation agreement between the Washoe County District Health
Department and EPA, and an Interlocal Agreement among the Washoe County
District Board of Health, Washoe County, and the cities of Reno and
Sparks concerning the Washoe County District Health Department.
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    \22\ See letter dated December 4, 2009 from Leo M. Drozdoff,
Administrator, NDEP, to Laura Yoshii, Acting Regional Administrator,
EPA Region 9.
    \23\ A small number of Washoe County regulations included as
attachment B to the 2009 PM2.5 Supplement have already
been approved into the Nevada SIP (e.g., the emergency episode
provisions); most have not been approved. However, we understand
that the submittal of the Washoe County regulations in attachment B
was for information purposes, and that the specific Washoe County
regulations submitted for approval into the SIP include only those
submitted as part of NDEP's submittal dated July 5, 2012. We also
understand attachment C to have been submitted for information
purposes.
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    On July 5, 2012, NDEP submitted ``Revisions to Nevada's Clean Air
Act Sec.  110(a)(2) State Implementation Plan Submittals; Parallel
Processing Request'' to address certain infrastructure SIP requirements
for the 1997 ozone, 1997 PM2.5, and 2006 PM2.5
NAAQS (``2012 Submittal'').\24\ This submittal served as a supplement
to the four prior ozone and PM2.5 infrastructure SIP
submittals and was submitted under the parallel processing mechanism
provided by 40 CFR part 51, appendix V, Section 2.3. The 2012 Submittal
includes a number of provisions, including statutes, regulations, and
non-regulatory provisions, that are currently effective under State law
but that have not been adopted specifically for submittal to EPA as SIP
revisions under CAA section 110. NDEP also included unofficial copies
of these provisions with a request for ``parallel processing'' \25\ and
stated

its intention to open a public comment period on July 13, 2012, provide
opportunity for a public hearing on August 15, 2012, and to submit
these provisions as a formal SIP submittal by the end of August 2012.
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    \24\ See letter dated July 5, 2012 from Colleen Cripps,
Administrator, NDEP, to Jared Blumenfeld, Regional Administrator,
EPA Region 9. This SIP revision was also submitted to revise
Nevada's infrastructure SIP submittal for the 2008 Lead (Pb) NAAQS,
which was submitted on October 12, 2011. EPA will address the
infrastructure SIP requirements for the 2008 Pb NAAQS in a separate
rulemaking.
    \25\ Under EPA's ``parallel processing'' procedure, EPA proposes
rulemaking action concurrently with the State's proposed rulemaking.
If the State's proposed plan is changed, EPA will evaluate that
subsequent change and may publish another notice of proposed
rulemaking. If no significant change is made, EPA will publish a
final rulemaking on the plan after responding to any submitted
comments. Final rulemaking action by EPA will occur only after the
plan has been fully adopted by Nevada and submitted formally to EPA
for approval into the SIP. See 40 CFR part 51, appendix V, section
2.3. We note that because NDEP's rulemaking process here is for
purposes of adopting the 2012 Submittal as a SIP revision under CAA
section 110, including existing statutes and regulations (without
revision) and updating non-regulatory provisions, we do not expect
any significant changes between the proposed and final plans.
---------------------------------------------------------------------------

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

III. EPA's Evaluation and Proposed Action

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

III.A. Proposed Approvals

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

    Third, in connection with our proposed approval of Nevada's
Infrastructure SIP Submittals with respect to section 110(a)(2)(J) (in
part) and (M), EPA is proposing to approve a comprehensive revision to
Section 11 (``Intergovernmental Consultation'') of the Nevada SIP,
which is included as Attachment D to Nevada's 2012 Submittal. Nevada's
revision to Section 11 (``Intergovernmental Consultation'') includes
updated information concerning consultation among the three air
pollution control agencies administering CAA programs in Nevada (NDEP,
Clark County Department of Air Quality, and Washoe County Health
District's Air Quality Management Division) as well as regional
planning and transportation agencies that also have certain air-
quality-planning-related responsibilities. If finalized as proposed,
NDEP's 2012 revision to Section 11 will entirely replace the existing
SIP version of Section 11, approved on May 31, 1972 (37 FR 10842), in
the Nevada SIP.
    Nevada's 2012 revision to Section 11 (``Intergovernmental
Consultation'') cites a number of statutes, two of which are included
as exhibits to Section 11, NRS section 445B.503 (``Local air pollution
control board in county whose population is 700,000 or more:
Cooperation with regional planning coalition and regional
transportation commission; prerequisites to adoption or amendment of
plan, policy or program'') and NRS section 439.390 (``District board of
health: Composition; qualifications of members''), that would be new to
the SIP.\26\ We have reviewed them and find them acceptable and are
proposing to approve them in connection with our proposed approval of
the 2012 revised Section 11 of the Nevada SIP.\27\
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    \26\ NDEP included, in attachment B of the 2012 Submittal,
certain statutes for inclusion in the Nevada SIP in support of the
Infrastructure SIP Submittals. While both NRS 445B.503 and NRS
439.390 are included as exhibits to revised Section 11
(``Intergovernmental Consultation''), only the former is included in
attachment B to the 2012 Submittal. We have assumed that the absence
of NRS 439.390 in attachment B was inadvertent, and that NDEP
intends NRS 439.390 to be included in the Nevada SIP, but we request
confirmation from NDEP on this matter.
    \27\ In the 2012 Submittal, NDEP also included an updated
version of a statute that is also cited in the revised Section 11
(``Intergovernmental Consultation'') but that is already approved
into the SIP, NRS section 445B.500 (``Establishment and
administration of program; contents of program; designation of air
pollution control agency of county for purposes of federal act;
powers and duties of local air pollution control board; notice of
public hearings; delegation of authority to determine violations and
levy administrative penalties; cities and smaller counties:
regulation of certain electric plants prohibited''), approved at 71
FR 51766 (August 31, 2006). We have reviewed the updated version of
NRS 445B.500 and note that the only changes relative to the existing
SIP version of NRS 445B.500 relate to hearing boards, hearing
officers, and school districts and, thus, are administrative in
nature. As such, we propose herein to approve the updated version of
NRS 445B.500 that was included in attachment B to the 2012 Submittal
as a revision to the Nevada SIP.
---------------------------------------------------------------------------

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

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

III.B. Proposed Disapprovals

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

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

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

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

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

    With respect to the requirements regarding interstate transport in
CAA section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5
NAAQS, we propose to partially approve and partially disapprove
Nevada's 2009 PM2.5 Submittal and 2009 PM2.5
Supplement. We propose to partially disapprove the submission because
it relies on irrelevant factors and lacks any technical analysis to
support the State's conclusion with respect to interstate transport. We
also propose to partially approve the submission, however, based on
EPA's supplemental evaluation of relevant technical information, which
supports a finding that emissions from Nevada do not significantly
contribute to nonattainment or interfere with maintenance of the 2006
24-hour PM2.5 NAAQS in any other state and that the existing
Nevada SIP is, therefore, adequate to meet the requirements of CAA
section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS.
See our 2006 PM2.5 Transport TSD.
    For the 1997 8-hour ozone and 1997 PM2.5 NAAQS, EPA
previously approved an interstate transport SIP submitted by Nevada as
satisfying the requirements of CAA section 110(a)(D)(i)(I). See 72 FR
41629 (July 31, 2007).
    For the requirement of CAA section 110(a)(2)(D)(i)(II) (regarding
interference with other states' required measures to prevent
significant deterioration of air quality), we propose to approve the
Clark County portion of the SIP, and to disapprove the NDEP and Washoe
County portions of the SIP, for the reasons discussed at the start of
section III.B of this notice and our Overarching TSD. With respect to
the requirement of CAA section 110(a)(2)(D)(i)(II) (regarding
interference with other states' required measures to protect
visibility), EPA previously approved Nevada's interstate transport SIP
as satisfying this requirement for the 1997 ozone and 1997
PM2.5 NAAQS as part of EPA's action on Nevada's Regional
Haze SIP. See 77 FR 17334 at 17339 (March 26, 2012). For purposes of
the 2006 PM2.5 NAAQS, we propose the same interpretations
and conclusions that we proposed as part of EPA's proposed action on
the Nevada Regional Haze SIP. See 76 FR 36450 at 36466, June 22, 2011.
In other words, we propose to find that Nevada's SIP-approved Regional
Haze Plan contains adequate provisions to protect visibility in other
states, and therefore meets the visibility requirement of CAA section
110(a)(2)(D)(II) for the 2006 PM2.5 NAAQS.\31\
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    \31\ Section IV.G.7 of the June 22, 2011 Regional Haze SIP
proposal (See 76 FR 36450 at 36466) stated the following: ``Section
110(a)(2)(D)(i)(II) of the Act requires SIP revisions to contain
adequate provisions to prohibit any source or other types of
emission activity within the state from emitting any air pollutant
in amounts that will interfere with another state's plan to protect
visibility. Nevada submitted its SIP for Interstate Transport to EPA
on February 7, 2007, which EPA approved and promulgated in the
Federal Register on July 31, 2007 (70 FR 41629). In our Federal
Register Notice, we deferred action on whether Nevada interferes
with other states' plans to address regional visibility impairment
caused by regional haze until we received Nevada's Regional Haze
SIP. As explained in Section IV.D.2. of this notice, NDEP relied on
the [Western Regional Air Partnership's] source apportionment
modeling to demonstrate that Nevada's emissions are projected to
have a minimal contribution to sulfate and nitrate extinction in
each of 24 Class I areas in five adjacent states. Moreover, none of
the neighboring western states have requested emission reductions
from Nevada in order to meet their [reasonable progress goals].
Therefore, in proposing to approve Nevada's [Regional Haze] SIP, we
are proposing to find that this plan revision contains adequate
provisions to protect visibility in other states.''
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    With respect to the requirements of CAA section 110(a)(2)(D)(ii),
EPA proposes to approve Nevada's Infrastructure SIP Submittals with
respect to the Clark County portion of the Nevada SIP, contingent on
finalizing EPA's proposed approval of Clark County's SIP revisions for
the review of new or modified stationary sources, and to disapprove the
SIP with respect to the NDEP and Washoe County portions of the Nevada
SIP, for the reasons discussed at the start of section III.B of this
notice and in our Overarching TSD.
    For Section 110(a)(2)(F), we propose to approve the Clark County
portion of the SIP, contingent on finalizing EPA's proposed approval of
Clark County's SIP revisions for the review of new or modified
stationary sources, for subsections 110(a)(2)(F)(i) and
110(a)(2)(F)(ii). See our Overarching TSD. We propose to disapprove
subsection 110(a)(2)(F)(iii) for the Clark County portion of the SIP
because Clark County has repealed its regulation, Section 24, that
formerly addressed the correlation requirement of this subsection,
without submitting a SIP revision to replace it. For the NDEP and
Washoe County portions of the SIP, we propose to approve Nevada's
Infrastructure SIP Submittals for all three subsections. Note, however,
that our proposed approval of subsections 110(a)(2)(F)(ii) and
110(a)(2)(F)(iii) for the Washoe County portion of the SIP is
contingent on finalizing EPA's proposed approval of Washoe County Air
Quality Regulations 030.218, 030.230, 030.235, and 030.970. See our
Overarching TSD.
    For Section 110(a)(2)(J) we propose to approve Nevada's
Infrastructure SIP Submittals as meeting the consultation, public
notification, and visibility requirements of this section. Our proposed
approval with respect to the consultation requirements of this section
are contingent on finalizing EPA's proposed approval of certain
provisions of Nevada's 2012 Submittal, as described in section III.A of
this notice. For the permitting-related requirements of section
110(a)(2)(J), we propose to approve the Clark County portion of the
SIP, contingent on finalizing EPA's proposed approval of Clark County's
SIP revisions for the review of new or modified stationary sources, and
to disapprove the NDEP and Washoe County portions of the SIP, for the
reasons discussed at the start of section III.B of this notice and in
our Overarching TSD.
    For Section 110(a)(2)(K), we propose to approve the Clark County
portion of the SIP contingent on finalizing EPA's proposed approval of
Clark County's SIP revisions for the review of new or modified
stationary sources. See our Overarching TSD. We propose to disapprove
the NDEP and Washoe County portions of the SIP with respect to the
permit modeling requirements of section 110(a)(2)(K), for the reasons
discussed at the start of section III.B of this notice and our
Overarching TSD.
    EPA takes very seriously a proposal to disapprove a state plan, as
we believe that it is preferable, and preferred in the provisions of
the Clean Air Act, that these requirements be implemented through state
plans. A state plan need not contain exactly the same provisions that
EPA might require, but EPA must be able to find that the state plan is
consistent with the requirements of the Act. Further, EPA's oversight
role requires that it assure consistent implementation of Clean Air Act
requirements by states across the country, even while acknowledging
that individual decisions from source to source or state to state may
not have identical outcomes. EPA believes these proposed disapprovals
are the only path that is consistent with the Act at this time.

III.C. Alternative Proposed Disapprovals (Parallel Processing)

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

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

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

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

    \33\ In its 2008 and 2009 Infrastructure SIP Submittals, Nevada
did not submit any information about consultation within Clark
County. For Washoe County, the 2009 PM2.5 Supplement
included a copy of the ``Interlocal Agreement Concerning the Washoe
County District Health Department'' as Attachment D. This agreement
partially addresses the consultation requirements of CAA sections
110(a)(2)(J) and (M), since it defines membership and other aspects
of the DBOH's operation such that Washoe County and the two
incorporated cities (Reno and Sparks) each have two representatives
on the seven-member DBOH. However, it is insufficient to address the
consultation requirements of CAA section 121. For example, it does
not identify a process to consult with Federal Land Managers having
authority over Federal land affected by the County's air plans.
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    However, sections 110(a)(2)(J) and 110(a)(2)(M) address more than
just rulemaking or permits, although such consultation may be relevant
as part of the process for consultation required under CAA section 121.
Moreover, a commitment to maintain an acceptable process of
consultation is not a substitute for the identification of the process
itself as part of the Nevada SIP. More broadly, the SIP still contains
outdated information in Section 11 (``Intergovernmental Relations''),
as approved on May 31, 1972 (37 FR 10842). While the Nevada SIP does
have a number of statutes that authorize the state and counties to
cooperate with local governments (see, e.g., NRS 445B.210, 445B.220,
445B.235, and 445B.500), such cooperation is optional and similarly not
a substitute for a process for consultation that exists as part of the
SIP. On this basis, we propose, in the alternative, to disapprove
Nevada's 2008 and 2009 Infrastructure SIP Submittals with respect to
the consultation requirements of section 110(a)(2)(J) and section
110(a)(2)(M).

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

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

III.E. Discussion of CAA SIP Revision Requirements

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

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

III.F. Consequences of Proposed Disapprovals

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

IV. Statutory and Executive Order Reviews

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

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

IV.B. Paperwork Reduction Act

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

IV.C. Regulatory Flexibility Act

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

IV.D. Unfunded Mandates Reform Act

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

IV.E. Executive Order 13132, Federalism

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

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

    This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP
on which EPA is proposing action would not apply in Indian country
located in the state, and EPA notes that it will not impose substantial
direct costs on tribal governments or preempt tribal law. Thus,
Executive Order 13175 does not apply to this proposed action.

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

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

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

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

IV.I. National Technology Transfer and Advancement Act

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

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

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

List of Subjects in 40 CFR Part 52

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

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

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