[Federal Register Volume 77, Number 58 (Monday, March 26, 2012)]
[Rules and Regulations]
[Pages 17334-17341]
[FR Doc No: 2012-7025]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2011-0130, FRL-9612-7]

Approval and Promulgation of Air Quality Implementation Plans;
State of Nevada; Regional Haze State Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing its approval of most of the Nevada Regional
Haze State Implementation Plan (SIP) that implements the Clean Air Act
(CAA) Regional Haze Rule requiring states to prevent any future and
remedy any existing man-made impairment of visibility in mandatory
Class I areas through a regional haze program. EPA proposed to approve
all parts of Nevada's SIP revisions on June 22, 2011 (76 FR 36450).
This final approval applies to all aspects of Nevada's SIP except for
that portion of Nevada's determination regarding the Best Available
Retrofit Technology (BART) to reduce nitrogen oxide (NOX)
emissions at the Reid Gardner Generating Station (RGGS). We will take
action on BART for NOX at RGGS in a future notice.

DATES: Effective Date: This rule is effective on April 25, 2012.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2011-0130 for
this action. Generally, documents in the docket are available
electronically at http://www.regulations.gov or in hard copy at EPA
Region 9, 75 Hawthorne Street, San Francisco, California. Please note
that while many of the documents in the docket are listed at http://www.regulations.gov, some information may not be specifically listed in
the index to the docket and may be publicly available only at the hard
copy location (e.g., copyrighted material, large maps, multi-volume
reports or otherwise voluminous materials), and some may not be
available at either locations (e.g., confidential business
information). To inspect the hard copy materials, please schedule an
appointment during normal business hours with the contact listed
directly below.

FOR FURTHER INFORMATION CONTACT: Thomas Webb, U.S. EPA, Region 9,
Planning Office, Air Division, Air-2, 75 Hawthorne Street, San
Francisco, CA 94105. Thomas Webb can be reached at telephone number
(415) 947-4139 and via electronic mail at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we,''
``us,'' or ``our,'' is used, we mean the United States Environmental
Protection Agency (EPA).

Table of Contents

I. Background
    A. Description of Regional Haze
    B. History of Regional Haze Regulations
    C. Our Proposed Action
II. BART Determination for NOX at Reid Gardner
    A. Background
    B. NDEP's Determination
    C. Public Comments Relevant to NDEP's Determination
    D. EPA's Analysis
III. EPA Responses to Public Comments Except BART for NOX
at RGGS
    A. Reasonable Progress Goal
    B. Long-Term Strategy
    C. BART for SO2 and PM10 at Reid Gardner
    D. Corrections to EPA's Technical Analysis
IV. EPA Action
V. Statutory and Executive Order Reviews

I. Background

 A. Description of Regional Haze

    Regional haze is the impairment of visibility across a broad
geographic area produced by numerous sources and

activities that emit fine particles and their precursors, primarily
sulfur dioxide (SO2) and nitrogen oxide (NOX),
and in some cases, ammonia (NH3) and volatile organic
compounds (VOC). Fine particle precursors react in the atmosphere to
form fine particulate matter (PM2.5), primarily sulfates,
nitrates, organic carbon, elemental carbon, and soil dust, which impair
visibility by scattering and absorbing light. Visibility impairment
reduces the clarity, color, and visible distance that one can see.
PM2.5 can also cause serious health effects and mortality in
humans and contributes to environmental effects such as acid deposition
and eutrophication of water bodies.
    Data from existing visibility monitors, the ``Interagency
Monitoring of Protected Visual Environments'' (IMPROVE) network,
indicate that visibility impairment caused by air pollution occurs
virtually all the time at most federally protected national parks and
wilderness areas, known as Class I areas. The average visual range in
many Class I areas in the western United States is 100 to 150
kilometers, or about one-half to two-thirds of the visual range that
would exist without man-made air pollution.\1\ In most of the eastern
Class I areas of the United States, the average visual range is less
than 30 kilometers, or about one-fifth of the visual range that would
exist under estimated natural conditions. 64 FR 35715 (July 1, 1999).
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    \1\ Visual range is the greatest distance, in kilometers or
miles, at which one can view a dark object against the sky.
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 B. History of Regional Haze Regulations

    In section 169(A)(1) of the 1977 Amendments to the CAA, Congress
established as a national goal the ``prevention of any future, and the
remedying of any existing, impairment of visibility in mandatory class
I Federal areas which impairment results from man-made air pollution.''
Visibility was determined by Congress to be an important value in 156
mandatory Class I Federal areas \2\ as listed in 40 CFR 81.400-437. In
the first phase of visibility protection, EPA promulgated regulations
on December 2, 1980, to address visibility impairment in Class I areas
that is ``reasonably attributable'' to a single source or small group
of sources, i.e., ``reasonably attributable visibility impairment'' or
RAVI. 45 FR 80084. EPA deferred action on regional haze that emanates
from a variety of sources until monitoring, modeling and scientific
knowledge about the relationship between pollutants and visibility
impairment were improved.
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    \2\ Areas designated as mandatory Class I Federal areas consist
of national parks exceeding 6000 acres, wilderness areas and
national memorial parks exceeding 5000 acres, and all international
parks that were in existence on August 7, 1977. 42 U.S.C. 7472(a).
In accordance with section 169A of the CAA, EPA, in consultation
with the Department of Interior, promulgated a list of 156 areas
where visibility is identified as an important value. 44 FR 69122
(November 30, 1979). Although states and tribes may designate as
Class I additional areas which they consider to have visibility as
an important value, the requirements of the visibility program set
forth in section 169A of the CAA apply only to ``mandatory Class I
Federal areas.'' Each mandatory Class I Federal area is the
responsibility of a ``Federal Land Manager.'' 42 U.S.C. 7602(i).
When we use the term ``Class I area'' in this action, we mean a
``mandatory Class I Federal area.''
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    Congress added section 169B to the CAA in 1990 to conduct
scientific research on regional haze. This legislation established the
Grand Canyon Visibility Transport Commission (GCVTC), which issued its
report, ``Recommendations for Improving Western Vistas,'' on June 10,
1996. These recommendations informed the regulatory development of a
regional haze program, and provided an option for certain western
states to address visibility at 16 Class I areas on the Colorado
Plateau under 40 CFR 51.309.
    EPA promulgated a rule to address regional haze on July 1, 1999
known as the Regional Haze Rule (RHR). See 64 FR 35713 as amended at 70
FR 39156 (July 6, 2005) and 71 FR 60631 (October 13, 2006). The RHR
revised the existing visibility regulations to include provisions
addressing regional haze impairment and established a comprehensive
visibility protection program for Class I areas. The requirements for
regional haze, found at 40 CFR 51.308 and 51.309, are included in EPA's
visibility protection regulations at 40 CFR 51.300-309.
    The requirement to submit a regional haze SIP revision applies to
all 50 states, the District of Columbia, and the Virgin Islands. States
were required to submit the first SIP addressing regional haze
visibility impairment no later than December 17, 2007. 40 CFR
51.308(b). Since most states, including Nevada, did not submit SIPs
prior to the deadline, EPA made a Finding of Failure to Submit that
under the Clean Air Act had the effect of creating a deadline of
January 15, 2011, for EPA to approve a SIP or publish a Federal
Implementation Plan (FIP). 74 FR 2392 (January 15, 2009). EPA is
publishing this final action to meet this obligation in part.
    For a more detailed discussion of the CAA and RHR requirements,
please see sections II and III of our proposal dated June 22, 2011 (76
FR 36450). Our evaluation of the Nevada Regional Haze Plan is in
section IV of the same proposal.

C. Our Proposed Action

    On June 22, 2011, EPA proposed to approve all portions of Nevada's
Regional Haze SIP as meeting the relevant requirements of CAA Section
169A and the Regional Haze Rule. We proposed to find that Nevada
appropriately established baseline visibility conditions and a
reasonable progress goal for its one Class I area; developed a long-
term strategy with enforceable measures to ensure reasonable progress
toward achieving the Reasonable Progress Goal in the first planning
period ending in 2018; adequately applied Best Available Retrofit
Technology to specific stationary sources, including RGGS; developed a
regional haze monitoring strategy; provided for periodic progress
reports and revisions; provided for consultation and coordination with
federal land managers; and provided for the regional haze SIP's future
review and revisions. We also proposed to find that emissions from
Nevada do not interfere with other states' measures to protect
visibility as required by CAA Section 110(a)(2)(D)(i)(II). Our proposed
action provides more information about the relevant CAA requirements,
EPA guidance, the State's submittals, and our review and evaluation of
the SIP revisions.

II. BART Determination for NOX at Reid Gardner

    We are taking no action in today's rule on the portion of the
Nevada SIP that contains the BART determination at RGGS for
NOX. Following our review of the public comments on this
issue, we performed additional analysis of Nevada's NOX BART
determination for RGGS. As a result, we no longer consider the
currently available information to be sufficient for us to take final
action on the Nevada Division of Environmental Protection's (NDEP's)
determination that rotating overfire air (ROFA) with Rotamix (a form of
selective non-catalytic reduction or SNCR) is the NOX
control technology that represents BART. We intend to consider this
determination in more detail at a future date.

A. Background

    The RHR provides that a BART determination must take into account
several factors, which are frequently referred to as the ``five-factor
analysis.'' These factors are listed below (40 CFR
51.308(e)(1)(ii)(A)):

     The cost of compliance for the technically feasible
control technologies;
     The energy and non-air quality impacts of the control
technologies;
     Any existing air pollution control technologies at the
source;
     The remaining useful life of the source; and
     The degree of visibility improvement which may reasonably
be anticipated to result from the various control technologies.

 B. NDEP's Determination

    RGGS consists of four coal-fired boilers, three of which are BART-
eligible units with generating capacity of 100 megawatts (MW) each. A
fourth unit (250 MW) is not BART-eligible. Nevada Energy, the owner of
RGGS, performed a BART analysis for the three BART-eligible RGGS units
and submitted the results of its analysis to NDEP.\3\ In its BART
analysis, Nevada Energy considered several NOX control
technologies and evaluated the cost of compliance and visibility
improvement associated with each technology. In preparing the SIP, NDEP
relied on certain aspects of Nevada Energy's analysis while performing
updated analyses for other aspects. When considering the cost and cost
effectiveness of compliance, NDEP developed its own set of emission
reduction estimates for the various NOX control
technologies, but used Nevada Energy's estimates of total capital and
annual costs.\4\ When considering the degree of visibility improvement
associated with various control technologies, NDEP relied upon the
visibility impacts for each control option as modeled by Nevada Energy,
rather than modeling the visibility impacts attributable to NDEP's own
estimates of NOX removal.
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    \3\ Nevada Energy BART Analysis Reports, Reid--Gardner--1--10-
03-08.pdf, Reid--Gardner--2--10-03-08.pdf, Reid--Gardner--3--10-03-
08.pdf. Available in Docket Item No. EPA-R09-OAR-2011-0130-0007.
    \4\ Based on a comparison of emission reductions summarized in
Table 1, NDEP Reid Gardner BART Determination, October 22, 2009
(Available as Docket Item No. EPA-R09-OAR-2011-0130-0005), and
emission reductions summarized in Table 3-2 of the NVE BART Analysis
Reports. Visibility impacts as summarized from Table 5-4 of the NVE
BART Analysis Reports.
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    In its submittal to NDEP, Nevada Energy determined that low
NOX burners (LNB) with OFA (overfire air) were BART for
NOX. In preparing the SIP, NDEP determined that a more
stringent control technology, ROFA with Rotamix, was BART for
NOX. NDEP eliminated even more stringent control options,
such as Selective Catalytic Reduction (SCR) with LNB and OFA, on the
grounds that ``the $/ton of NOX removed increased
significantly * * * without correspondingly significant improvements in
visibility.'' \5\
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    \5\ Revised NDEP Reid Gardner BART Determination Review, page 6.
Available as Docket Item No. EPA-R09-OAR-2011-0130-0005. See also
Nevada Regional Haze SIP, Appendix D (Responses to Comments), pages
D-32 to -42. Available in docket item No. EPA-R09-OAR-2011-0130-003.
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C. Public Comments Relevant to NDEP's Determination

    As noted in Section II.B above, NDEP's elimination of control
options more stringent than ROFA with Rotamix was based on the
incremental cost effectiveness ($/ton) and expected visibility
improvement of the various options. EPA received several comments (see
Docket Items 0054, 0057, 0061, 0062 and 0062 Attachment 6) alleging
flaws in NDEP's analysis and response to comments, and stating that SCR
should be BART for NOX at RGGS. These commenters alleged
certain flaws and submitted additional information in criticizing
NDEP's development of the cost effectiveness values and expected
visibility improvement attributable to the more stringent SCR-based
control option.
    Regarding cost effectiveness, several commenters (see Docket Items
0054, 0057, 0061, and 0062) alleged that the total capital and annual
cost estimates relied upon by NDEP for the SCR-based control options
were overestimated, included several costs not allowed by EPA's Control
Cost Manual (CCM) such as owner's costs, surcharge, and allowance for
funds used during construction (AFUDC), and used certain variables and
values that were either inflated or unreasonable. One commenter (see
docket item 0062 Attachment 6) performed a revised analysis of SCR cost
effectiveness that adjusted for these alleged issues, and projected a
33 to 40 percent decrease in average and incremental cost effectiveness
values as a result of these adjustments. In addition, commenters stated
that total capital and annual cost estimates lacked evidentiary support
in the administrative record due to the absence of detailed information
such as equipment design parameters, equipment lists, and actual cost
calculations. Finally, commenters also stated that the level of SCR
performance relied upon by NDEP is not supported in the administrative
record by site-specific information such as vendor quotes or
specifications (see Docket Items 0054 and 0061 to 0063).
    Regarding visibility improvement, commenters (see Docket Items 0054
and 0062) noted that while baseline visibility modeling indicated that
RGGS currently causes or contributes to visibility impairment at
multiple Class I areas, control scenario visibility modeling results
were only provided for the single closest Class I area, Grand Canyon
National Park. They asserted that the potential visibility benefit at
all affected Class I areas should be accounted for when considering
control technology options. In addition, as described in Section II.B
above, NDEP estimated larger NOX emission reductions than
the emission reductions estimated by Nevada Energy. NDEP, however,
continued to rely on the visibility modeling provided by Nevada Energy,
and did not update the modeling to reflect NDEP's larger NOX
emission reduction estimates. As a result, the existing visibility
modeling does not reflect the incremental visibility improvement
attributable to NDEP's estimates of NOX emission reductions.
Finally, commenters noted that certain modeling files and documentation
were missing from our docket and were unavailable from NDEP, such as
the NOX control scenario modeling result files and
supporting information for NDEP's baseline emission scenarios.

D. EPA's Analysis

    After reviewing the public comments, we performed additional
analysis of the cost effectiveness and visibility improvement
associated with the various NOX control technologies
considered by NDEP in determining BART at RGGS. Based upon this
additional analysis, we no longer consider the currently available
supporting information to be sufficiently detailed to allow us to
perform a critical review of these issues. As a result, we are taking
no action in this rule on NDEP's determination that ROFA with Rotamix
is the NOX control technology that represents BART.
    Therefore, EPA is taking no action on the portion of the SIP
containing the BART determination for NOX at RGGS including
the corresponding emission limits and schedules of compliance for
NOX at RGGS in the SIP's long-term strategy. Specifically,
these are sections 5.5.3, 5.6.3 and 7.2 of Nevada's SIP that address
the NOX BART control analyses, visibility improvement, and
implementation at RGGS. Since the emissions inventories used to develop
the reasonable progress goal (RPG) did not include NOX
reductions from BART, the fact that we take no action in this rule
regarding the RGGS BART

determination for NOX does not impact the RPG, and will not
require adjustments to the long-term strategy (LTS) in the SIP.\6\ EPA
will propose further action on this particular portion of the SIP in
the future.
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    \6\ Per the Nevada RH SIP, page 6-5, the only BART emission
reductions included in the 2018 emission inventory were
SO2 reductions resulting from presumptive BART limits.
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III. EPA Responses to Public Comments Except BART for NOX at
RGGS

    EPA's proposed approval published on June 22, 2011 (76 FR 36450)
included a 30-day public comment period, which ended on July 22, 2011.
We subsequently extended the comment period by 30 days until August 22,
2011 (76 FR 43963). We received comments from WildEarth Guardians, a
consortium of environmental and conservation organizations \7\
(``Consortium''), the Moapa Band of Paiutes, the Nevada Division of
Environmental Protection (NDEP), the National Park Service, the U.S.
Fish and Wildlife Service, and seven individuals. With the exception of
NDEP's comments, which support EPA's proposed approval of its plan,
most of the comments expressed opposition to EPA's full approval of the
SIP. The majority of these comments criticized our proposed approval of
NDEP's determination of BART controls to reduce emissions of
NOX at RGGS. In this final rule approving all other portions
of Nevada's RH SIP, we are responding to all other major comments on
our proposed SIP approval. We find that the SIP is approvable except
BART for NOX at RGGS on which EPA is taking no action.
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    \7\ The Consortium's comment letter was signed by
representatives of the Sierra Club, National Parks Conservation
Association, Citizens for Dixie's Future, Defend Our Desert, Friends
of Gold Butte, Grand Canyon Trust, and Western Resource Advocates.
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A. Reasonable Progress Goal

    Comments: The National Park Service and U.S. Fish and Wildlife
Service expressed concern that the SIP's reasonable progress analysis
was not consistent with Section 308(d)(1) of the Regional Haze Rule and
EPA's Guidance for Setting Reasonable Progress Goals under the Regional
Haze Program because NDEP ``did not consider what additional emissions
reductions beyond those already being implemented might be reasonable
to improve visibility.'' Similarly, WildEarth Guardians commented that
the Clean Air Act requires EPA to base reasonable progress goals on the
factors set forth under Section 169A(g), and not the bare minimum
required to meet the uniform rate of progress. WildEarth Guardians
expressed concern that ``EPA has overlooked opportunities to further
reduce haze forming pollution from sources in Nevada.'' By contrast,
NDEP asserted that its reasonable progress analysis considered the four
factors required under the Regional Haze Rule (i.e., the costs of
compliance, the time necessary for compliance, the energy and non-air
quality environmental impacts of compliance, and the remaining useful
life of any existing source subject to such requirements).
Specifically, NDEP noted that ``[c]ost was considered first, * * * and
the NDEP concluded it was not necessary to continue with an analysis of
the remaining factors.''
    Response: As explained in the proposed rule, in promulgating the
SIP NDEP considered the four factors in setting the reasonable progress
goal for the Jarbidge Wilderness Area, the only Class I area in Nevada.
The RHR and EPA's guidance affords the State considerable flexibility
in determining whether additional emission reduction measures are
needed to achieve the RPG in the first planning period. The NDEP
reasonably concluded that the cost of additional controls was not
warranted given projected emissions reductions from anthropogenic
sources and the fact that the majority of haze at Jarbidge is from
natural and out-of-state sources. Moreover, NDEP noted in its comments
that ``of the five proposed electrical generating units (EGUs) included
in the State's 2018 emissions inventory, only two have moved forward
and are now operational,'' which would further lower emissions
projections for both NOX and SO2 by 2018. The
comments do not demonstrate that the State failed to consider
reasonably the four factors, but the comments question whether the
State should have done a more robust analysis. EPA has considered the
comments and the comments have not provided any further specific facts
that should have been considered in the State's analysis beyond
conclusory criticisms. Therefore, given the broad discretion the RHR
affords the State, and the lack of specificity in the comments on this
issue, EPA reaffirms its proposed decision to approve the State's
reasonable progress goal for Jarbidge.

B. Long-Term Strategy

    Comments: The Consortium argued that the SIP ``does not contain
evidence showing full and effective consultation with other states,
does not `ensure that it has included all measures needed to achieve
its apportionment of emission reduction obligations agreed upon'
through that consultation process and further fails to `document the
technical basis, including modeling, monitoring and emissions
information,' on which it relies to determine its apportionment of
emission reduction obligations agreed upon through that process.''
Specifically, the Consortium noted that, ``[a]lthough the Proposed SIP
implies that Nevada consulted with the Western Regional Air Partnership
(``WRAP'') in determining its apportionment of visibility impacts to
Class I areas outside of the State of Nevada, the administrative record
does not support the legally-required level of consultation.'' They
further argued that ``WRAP's failure to apportion Nevada's contribution
does not save Nevada from its independent obligation to require
adequate BART determinations and a long-term strategy to reduce haze-
causing pollutants in out-of-state Class I areas from its pollution
sources.''
    Response: EPA disagrees with the assertions that Nevada did not
consult with other states, did not meet its source apportionment
obligations to Class I areas in other states, and did not document the
technical basis for its apportionment as required in 40 CFR
51.308(d)(3)(i), (ii), and (iii). Although Nevada lacked formal
membership in the WRAP, representatives from NDEP actively participated
with other state representatives in the WRAP's committees and work
groups, which jointly directed the development of the WRAP's technical
analyses. Nevada and other western states relied on the WRAP's source
apportionment modeling results to estimate the contribution of out-of-
state emissions and relied on the WRAP's consultation process to ensure
the compatibility of reasonable progress goals and long-term
strategies.\8\ Nevada used the WRAP's source apportionment modeling to
demonstrate the minimal contribution of Nevada's emissions to sulfate
and nitrate extinction at 25 Class I areas in five neighboring
states.\9\ Based on consultation through the WRAP, Nevada identified no
major contributions that supported developing new interstate
strategies, mitigation measures, or emissions reduction obligations.
Nevada and neighboring states agreed that the implementation of BART
and other existing measures in state regional haze plans were
sufficient for the states to meet the reasonable progress goals for
their respective Class I areas, and that future consultation would
address any

new strategies or measures needed. Moreover, Nevada did not receive any
requests from other states to achieve even greater reductions in its
emissions in order for other states to meet their RPGs. Therefore, EPA
reaffirms its proposed determination that Nevada adequately consulted
with other states, demonstrated that its SIP includes all measures
necessary to obtain its share of emission reductions at other Class I
areas, and provided the technical basis to document its analysis.
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    \8\ See 9.1.3 Past Consultation with other States in Nevada's
SIP.
    \9\ See 4.3.3 Source Apportionment for Other Class I Areas in
Nevada's SIP.
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 C. BART for SO2 and PM10 at RGGS

    In addition to extensive comments addressing NDEP's BART
determination for NOX at RGGS, we also received comments
concerning the timing of implementation of BART at RGGS generally, as
well as comments specifically addressing the SO2 and
PM10 BART determinations for RGGS. As noted above, we are
not acting on NDEP's BART determination for NOX at RGGS at
this time. Therefore, our responses concerning RGGS are limited to
comments related to the SO2 and PM10 BART
determinations.
1. BART for SO2 at RGGS
    Comments: Regarding NDEP's BART determination for SO2 at
RGGS, WildEarth Guardians expressed concern that ``SO2
limits do not appear to represent the degree of reduction achievable
through the application of the best system of continuous emission
reduction.'' In particular, they asserted that ``it appears that Reid
Gardner is already meeting emission limits that are less than half of
this proposed limit'', and that ``even Nevada recognizes the
SO2 emissions increases will occur as a result of [NDEP's]
proposed BART.'' By contrast, the National Park Service and the U.S.
Fish and Wildlife Service praised ``NDEP's action to lower the
SO2 limit'' at RGGS.
    Response: In setting the SO2 BART limits for RGGS, NDEP
took into account the existing controls at the facility, consistent
with CAA Section 169A(g)(2) and 40 CFR 51.308(e)(1)(ii)(A). In
particular, NDEP considered the effect of new fabric filter baghouses
that were installed on all three BART units at RGGS in 2008 and 2009
pursuant to a consent decree between the facility's owner and NDEP and
EPA.\10\ The consent decree established an SO2 emissions
limit of 0.40 lbs/MMbtu (a million British thermal units), based on a
10-day rolling average period, for each of the three BART units.\11\ In
its draft regional haze SIP, NDEP proposed an SO2 emissions
limit of 0.25 lbs/MMbtu for each of the three BART units at RGGS. In
response to comments from EPA and the National Park Service, NDEP
subsequently lowered the BART limits to 0.15 lbs/MMbtu, based on a 24-
hour averaging period.\12\
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    \10\ See Nevada's RH SIP Sections 5.5 and <IP_ADDRESS>.
    \11\ United States v. Nevada Power Company, Case 2:07-cv-00417
(D. Nev.) (consent decree entered June 15, 2007).
    \12\ See Nevada's RH SIP Chapter 5, footnote 4.
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    In arguing for further reductions in these BART limits, WildEarth
Guardians notes that, ``according to Clean Air Markets data from the
EPA, units 1-3 are meeting annual sulfur dioxide emission rates of
between 0.054 and 0.064 lbs/MMbtu and have for at least the last two
years.'' However, while the units' current annual average emission
rates may be less than 0.15 lb/MMbtu, these figures are not directly
comparable to the 24-hour rolling average emissions limits set by NDEP
in its BART determination for RGGS. The more relevant points of
comparison are the units' current Title V permit limits of 0.40 lbs/
MMbtu, based on a 10-day rolling average period, which are more than
twice the limit that NDEP has set for each of the three BART units in
its Regional Haze SIP.
    In response to commenters' concerns regarding potential increases
in SO2 emissions as a result of NDEP's BART determination at
RGGS, EPA re-examined NDEP's estimates of emission reductions resulting
from BART controls at RGGS. Nevada's SIP provides two sets of estimated
emission reductions resulting from BART controls at RGGS, one based on
the WRAP baseline (4,970 tons) and one based on NDEP's baseline (1,441
tons) for SO2.\13\ Although SO2 emissions are
estimated to increase by 838 tons from NDEP's baseline, they are
expected to decrease by 2,696 tons from the WRAP's baseline. Under both
scenarios, the emissions after BART Controls are held constant at 2,279
tons. Thus, the difference in estimated emissions reductions is a
reflection of the large difference between the WRAP baseline and the
NDEP baseline for SO2.
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    \13\ See Nevada's RH SIP, Table 5-6 Reid Gardner: BART Emissions
Reductions in Tons per Year.
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    NDEP's baseline emissions for SO2 were calculated using
acid rain data that omitted data deemed invalid due to monitoring
problems that were addressed by the consent decree. According to NDEP,
the omission of the invalid data effectively lowered the baseline
emissions (measured in lbs/MMbtu) by nearly half.\14\ Thus, the
projected increase in SO2 appears to be an artifact of
NDEP's exceptionally low baseline that is attributable to the exclusion
of invalid data.
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    \14\ See Nevada's RH SIP Section 5.5.
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    From a broader perspective, NDEP's BART determination for
SO2 at RGGS will result in a lower emissions limit (0.15
lbs/MMbtu based on a 24-hour rolling average compared to the current
Title V Permit limit of 0.40 lbs/MMbtu based on a 10-day rolling
average period) related to the new fabric filter baghouses and existing
wet soda ash with a dry flue gas desulfurization system. Since the BART
determination lowers the short-term emissions limit, there is no valid
reason to suspect that SO2 emissions will increase as a
result of BART controls. EPA will use the progress report due five
years after the SIP's approval to evaluate actual SO2
emissions at RGGS to ensure that NDEP's BART determination has not
resulted in increased emissions and will encourage NDEP to take
appropriate action, if necessary, at that time.
2. BART for PM10 at RGGS
    Comments: Regarding the PM10 limit, WildEarth Guardians
expressed concern that ``the proposed BART determination is
unenforceable because there are no monitoring, recordkeeping, or
reporting requirements proposed that would ensure compliance with the
24-hour limits. There are simply no monitoring requirements proposed
that would actually ensure that the PM limit is met on a continuous
basis. This is contrary to the Clean Air Act, which defines BART based
on continuous emission reductions.''
    Response: As explained in EPA's BART Guidelines, ``[m]onitoring
requirements generally applicable to sources, including those that are
subject to BART, are governed by other regulations. See, e.g., 40 CFR
part 64 (compliance assurance monitoring); 40 CFR 70.6(a)(3) (periodic
monitoring); 40 CFR 70.6(c)(1) (sufficiency monitoring).'' \15\ The
monitoring, recordkeeping and reporting requirements specifically
applicable to RGGS are found in the existing Nevada SIP as well as the
facility's Title V permit. In particular, the applicable SIP requires
continuous monitoring of opacity and compliance with a 20 percent
opacity limit.\16\ Although opacity does not directly correlate with
particulate concentrations, it is a good indicator of proper operation
of the baghouse since almost any opacity from a baghouse-controlled
coal-fired boiler

is indicative of leaks in the baghouse. Under Part 64, such an
excursion or exceedance must be addressed ``as expeditiously as
practicable in accordance with good air pollution control practices for
minimizing emissions.'' \17\ For directly assuring compliance with
existing PM10 limits, the Title V permit for RGGS contains
an annual stack test requirement using Method 5 for PM and Method 201A/
202 for PM10. Given the current opacity limit in the SIP and
the compliance methods in RGGS's Title V permit, we are approving the
BART determination for PM10 in Nevada's RH SIP. We will
continue to work with Nevada to ensure that all appropriate compliance
provisions are in the SIP.
---------------------------------------------------------------------------

    \15\ 40 CFR part 51 Appendix Y, Section V.
    \16\ See 40 CFR 52.1470(c); Nevada Administrative Code 445B.256-
267, 22017.
    \17\ 40 CFR 64.7(d)(1).
---------------------------------------------------------------------------

3. Timing of Implementation
    Comments: WildEarth Guardians expressed concern that ``EPA has not
demonstrated that `by January 1, 2015' is as expeditiously as practical
for complying with BART at Reid Gardner, nor shown that it is
reasonable to allow the facility a full five years to come into
compliance with BART.''
    Response: The Nevada BART regulation in the Regional Haze SIP
requires that the BART control measures at RGGS must be installed and
operating ``[o]n or before January 1, 2015; or (2) [n]ot later than 5
years after approval of Nevada's state implementation plan for regional
haze by the United States Environmental Protection Agency Region 9,
whichever occurs first.'' Given the date of our approval of Nevada's
SIP, the BART implementation deadline for the RGGS is January 1, 2015,
about three years from the date of this final rule. EPA considers
Nevada's choice of the January 1, 2015, to be reasonable in this
instance.

 D. Corrections to EPA's Technical Analysis

    Comments: NDEP noted a few corrections to EPA's analysis in the
proposed rule at 76 FR 36450 (June 22, 2011), but stated that these
minor corrections do not alter any of EPA's conclusions. The first
correction was to note that the percentages of emissions by source
category shown in section IV.C.2 of EPA's proposed rule are based on
the 2018 emissions inventory. The proposal omitted the date of the
inventory. Secondly, NDEP commented that the discussion of predominant
sources of PM2.5 was in error because ``the predominant
source of PM fine emissions are windblown dust (43 percent) and
fugitive dust (30 percent).'' EPA had mistakenly attributed PM fine
emissions to natural fires (49 percent) and area sources (37 percent).
Lastly, NDEP commented on the sources of visibility impairment, saying
that soil in PM2.5 is mostly from windblown dust, not
natural fire. EPA had mistakenly attributed the source of
PM2.5 to natural fire.
    Response: EPA is correcting the record as noted above.

IV. EPA Action

    Under section 110(k)(3) of the CAA, EPA is fully approving most
portions of the Nevada Regional Haze SIP as satisfying all of the
relevant requirements of CAA Section 169A and the Regional Haze Rule.
For the portions of the SIP establishing BART for NOX at
RGGS, EPA is taking no action at this time, and will take action on
those portions of the SIP in a separate rulemaking.
    We find that Nevada has met the following Regional Haze Rule
requirements: The State established baseline visibility conditions and
reasonable progress goals for each of its Class I areas; the State
developed a long-term strategy with enforceable measures ensuring
reasonable progress towards meeting the reasonable progress goals for
the first ten-year planning period, through 2018; the State has
adequately addressed the application of Best Available Retrofit
Technology to specific stationary sources, except for NOX at
RGGS; the State has an adequate regional haze monitoring strategy; the
State provided for consultation and coordination with federal land
managers in producing its regional haze plan; and, the State provided
for the regional haze plan's future revisions.
    In addition, under section 110(k)(3) of the CAA, we are fully
approving the Nevada Regional Haze SIP as satisfying the CAA Section
110(a)(2)(D)(i)(II) requirement to prohibit emissions that will
interfere with measures to protect visibility in another state for the
1997 8-hour ozone and 1997 PM2.5 NAAQS.\18\
---------------------------------------------------------------------------

    \18\ As noted in our proposal, 76 FR 36465, we previously
approved Nevada's SIP for Interstate Transport as meeting the other
requirements of CAA section 110(a)(2)(D)(i) for the 1997 8-hour
ozone and 1997 PM2.5 NAAQS. See 70 FR 41629. We are now
codifying this prior approval along with our current approval under
a new section entitled ``Interstate Transport.''
---------------------------------------------------------------------------

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve State
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves State law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by State law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
     Does not interfere with Executive Order 12898 (59 FR 7629
(Feb. 16, 1994)) because EPA lacks the discretionary authority to
address environmental justice in this rulemaking.

In addition, this rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to 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. However, the Moapa Band of
Paiutes did raise issues in the context of the BART determination for
RGGS, which will be addressed at a future date. Region 9 engaged in
formal consultation with the Moapa Band of Paiutes on August 11, 2011,
and heard these issues in person. We will continue to consult with
Moapa on RGGS.

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by May 25, 2012. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

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

    Dated: December 13, 2011.
Jared Blumenfeld,
Regional Administrator, Region 9.
    Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart DD--Nevada

0
2. In Sec.  52.1470(c):
0
a. In paragraph (c), Table 1 is amended by adding an entry for
``445B.029'' after the entry for ``445B.022'', and adding entries for
``445B.22095,'' and ``445B.22096'' after the entry for ``445B.22093''.

0
3. The table in paragraph (e) is amended by adding an entry for
``Nevada Regional Haze State Implementation Plan (October 2009)'' to
the end of the table.

Sec.  52.1470  Identification of plan.

* * * * *
    (c) * * *

                                    Table 1--EPA-Approved Nevada Regulations
----------------------------------------------------------------------------------------------------------------
                                                             State                                Additional
          State citation              Title/subject     effective date   EPA approval date       explanation
----------------------------------------------------------------------------------------------------------------
 Nevada Administrative Code, Chapter 445B, Air Controls, Air Pollution; Nevada Administrative Code, Chapter 445,
                    Air Controls, Air Pollution; Nevada Air Quality Regulations--Definitions
����������������������������������������������������������������������������������������������������������������

                                                  * * * * * * *
445B.029.........................  ``Best available            4/23/09  [Insert page number  Included in
                                    retrofit                             where the document   supplemental SIP
                                    technology''                         begins 3/26/12].     revision submitted
                                    defined.                                                  on September 20,
                                                                                2011, and approved
                                                                                as part of
                                                                                approval of Nevada
                                                                                Regional Haze SIP.

                                                  * * * * * * *
445B.22095.......................  Emission limitation         4/23/09  [Insert page number  Included in
                                    for BART.                            where the document   supplemental SIP
                                                                         begins 3/26/12].     revision submitted
                                                                                on September 20,
                                                                                2011, and approved
                                                                                as part of
                                                                                approval of Nevada
                                                                                Regional Haze SIP.
445B.22096, excluding the NOX      Control measures            1/28/10  [Insert page number  Included in
 emission limits and control        constituting BART;                   where the document   supplemental SIP
 types in sub-paragraph (1)(c).     limitations on                       begins 3/26/12].     revision submitted
                                    emissions.                                                on September 20,
                                                                                2011, and approved
                                                                                as part of
                                                                                approval of Nevada
                                                                                Regional Haze SIP.
                                                                                Excluding the NOX
                                                                                emission limits
                                                                                and control types
                                                                                for units 1, 2 and
                                                                                3 of NV Energy's
                                                                                Reid Gardner
                                                                                Generating
                                                                                Station.

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
                                        Applicable
      Name of SIP provision           geographic or          State       EPA approval date       Explanation
                                    nonattainment area  submittal date
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Nevada Regional Haze State         State-wide.........        11/18/09  [Insert page number  Excluding Appendix
 Implementation Plan (October                                            where the document   A (``Nevada BART
 2009), excluding the BART                                               begins 3/26/12].     Regulation''). The
 determination and the associated                                                             Nevada BART
 emission limits for NOX at Reid                                                              regulation,
 Gardner Generating Station in                                                                including NAC
 sections 5.5.3, 5.6.3 and 7.2.                                                               445B.029,
                                                                                445B.22095, and
                                                                                445B.22096, is
                                                                                listed above in 40
                                                                                CFR 52.1470(c).

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Section 52.1488 is amended by adding paragraph (e) to read as
follows:

Sec.  52.1488  Visibility protection.

* * * * *
    (e) Approval. On November 18, 2009, the Nevada Division of
Environmental Protection submitted the ``Nevada Regional Haze State
Implementation Plan.'' With the exception of the BART determination and
the associated emission limits for NOX at Reid Gardner
Generating Station in sections 5.5.3, 5.6.3 and 7.2, the Nevada
Regional Haze State Implementation Plan, as supplemented and amended on
February 18, 2010 and September 20, 2011, meets the applicable
requirements of Clean Air Act sections 169A and 169B and the Regional
Haze Rule in 40 CFR 51.308.

0
4. Add a new Sec.  52.1491 to read as follows:

Sec.  52.1491  Interstate transport.

    (a) Approval. On February 7, 2007, the Nevada Division of
Environmental Protection submitted the ``Nevada State Implementation
Plan for Interstate Transport to Satisfy the Requirements of the Clean
Air Act 110(a)(2)(D)(i) for the 8-hour Ozone and PM2.5 NAAQS
Promulgated in July 1997'' (``2007 Interstate Transport SIP''). The
2007 Interstate Transport SIP meets the requirements of Clean Air Act
section 110(a)(2)(D)(i) for the 1997 8-hour ozone and 1997
PM2.5 NAAQS other than the requirements of Clean Air Act
section 110(a)(2)(D)(i)(II) regarding interference with other states'
measures to protect visibility.
    (b) Approval. The requirements of Clean Air Act section
110(a)(2)(D)(i)(II) regarding interference with other states' measures
to protect visibility for the 1997 8-hour ozone and 1997
PM2.5 NAAQS are met by the ``Nevada Regional Haze State
Implementation Plan,'' as supplemented and amended on February 18, 2010
and September 20, 2011.

[FR Doc. 2012-7025 Filed 3-23-12; 8:45 am]
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