67652 Federal Register / Vol. 80, No. 212 / Tuesday, November 3, 2015 / Rules and Regulations 

1 73 FR 16436. This final rule reduced the ozone 

NAAQS from 0.08 parts per million (ppm) to 0.075 

ppm. 

2 75 FR 6474. This final rule revised the primary 

NO2 NAAQS from an annual arithmetic average to 

a one-hour NO2 NAAQS of 100 parts per billion 

(ppb) and left unchanged EPA’s secondary annual 

NO2 NAAQS. The form of the 1-hour standard is the 

3-year average of the 98th percentile of the yearly 

distribution of 1-hour daily maximum NO2

concentrations. 

3This final rule revoked EPA’s annual and 24- 

hour SO2 NAAQS and a 1-hour NAAQS of 75 ppb. 

The form of the 1-hour standard is the 3-year 

average of the 99th percentile of the yearly 

distribution of 1-hour daily maximum SO2

concentrations. 

* * * * * 

[FR Doc. 2015–27918 Filed 11–2–15; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R09–OAR–2014–0812; FRL–9935–82– 

Region 9] 

Partial Approval and Partial 

Disapproval of Air Quality State 

Implementation Plans; Nevada; 

Infrastructure Requirements for Ozone, 

NO2 and SO2

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: Environmental Protection 

Agency (EPA) is approving in part and 

disapproving in part State 

Implementation Plan (SIP) revisions 

submitted by the State of Nevada 

pursuant to the requirements of the 

Clean Air Act (CAA) for the 2008 ozone 

national ambient air quality standards 

(NAAQS), the 2010 nitrogen dioxide 

(NO2) NAAQS and the 2010 sulfur 

dioxide (SO2) NAAQS. The CAA 

requires that each state adopt and 

submit a SIP for the implementation, 

maintenance, and enforcement of each 

NAAQS promulgated by the EPA, and 

that EPA act on such SIPs. Nevada has 

met most of the applicable 

requirements. Where EPA is 

disapproving, in part, Nevada’s SIP 

revisions, the deficiencies have already 

been addressed by a federal 

implementation plan (FIP). 

DATES: This final rule is effective on 

December 3, 2015. 

ADDRESSES: EPA has established a 

docket for this action, identified by 

Docket ID Number EPA–R09–OAR– 

2014–0812. The index to the docket for 

this action is available electronically at 

http://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 in 

the index, some information may be 

publicly available only at the hard copy 

location (e.g., copyrighted material), and 

some may not be publicly available in 

either location (e.g., confidential 

business information (CBI)). To inspect 

the hard copy materials, please schedule 

an appointment during normal business 

hours with the contact listed directly 

below. 

FOR FURTHER INFORMATION CONTACT: Tom 

Kelly, Air Planning Office (AIR–2), U.S. 

Environmental Protection Agency, 

Region IX, (415) 972–3856, 

kelly.thomasp@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, the terms 

‘‘we,’’ ‘‘us,’’ and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Background 

II. EPA’s Response to Comments 

III. Final Action 

IV. Statutory and Executive Order Reviews 

I. Background 

Section 110(a)(1) of the CAA requires 

each state to submit to EPA, within 

three 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. 

EPA issued a revised NAAQS for 

ozone on March 28, 2010, for NO2 on 

February 9, 2010, and for SO2 on June 

22, 2010.123 These NAAQS revisions 

triggered requirements for states to 

submit an infrastructure SIP to address 

the applicable requirements of section 

110(a)(2) within three years. The 

Nevada Department of Environmental 

Protection (NDEP) has submitted several 

infrastructure SIP submittals in 

response to EPA’s promulgation of these 

NAAQS, including: 

Ozone 

• The Nevada Division of 

Environmental Protection Portion of the 

Nevada State Implementation Plan for 

the 2008 Ozone NAAQS: Demonstration 

of Adequacy April 10, 2013; 

• State Implementation Plan Revision 

to Meet the Ozone Infrastructure SIP 

Requirements of the Clean Air Act 

§ 110(a)(2), Clark County, Nevada, 

February, 2013; 

• The Washoe County Portion of the 

Nevada State Implementation Plan for 

the 2008 Ozone NAAQS: Demonstration 

of Adequacy, February 28, 2013. 

NO2

• NDEP letter to EPA, dated May 9, 

2013 and Washoe County letter, dated 

April 26, 2013, containing the Approved 

Minutes of the February 28, 2013 public 

hearing and the Certificate of Adoption; 

• The Nevada Division of 

Environmental Protection Portion of the 

Nevada State Implementation Plan for 

the 2010 Nitrogen Dioxide Primary 

NAAQS: Demonstration of Adequacy 

and appendices, January 18, 2013; 

• State Implementation Plan Revision 

to Meet the Nitrogen Dioxide 

Infrastructure SIP Requirements of the 

Clean Air Act § 110(a)(2), and 

attachments Clark County, Nevada, 

December, 2012; 

• The Washoe County Portion of the 

Nevada State Implementation Plan to 

Meet the Nitrogen Dioxide Primary 

NAAQS; Final Submittal, March 15, 

2013. 

SO2

• The Nevada Division of 

Environmental Protection Portion of the 

Nevada State Implementation Plan for 

the 2010 Sulfur Dioxide Primary 

NAAQS, and appendices, June 3, 2013; 

• State Implementation Plan Revision 

to Meet the Sulfur Dioxide 

Infrastructure SIP Requirements of the 

Clean Air Act § 110(a)(2), and 

attachments Clark County, Nevada, 

May, 2013; 

• The Washoe County Portion of the 

Nevada State Implementation Plan to 

Meet the Sulfur Dioxide Infrastructure 

SIP Requirements of Clean Air Act 

§ 110(a)(2), and attachments, March 28, 

2013. 

We refer to these submittals 

collectively as ‘‘Nevada’s Infrastructure 

Submittals.’’ 

On May 20, 2015 (80 FR 28893), EPA 

proposed to approve in part, and 

disapprove in part, these SIP revisions 

addressing the infrastructure 

requirements of CAA section 110(a)(1) 

and (2) for the 2008 ozone, the 2010 

NO2, and the 2010 SO2 NAAQS. Except 

for the interstate transport elements of 

110(a)(2)(D)(i)(I) for the 2008 ozone and 

2010 SO2 NAAQS, we are taking final 

action on all the Nevada Infrastructure 

Submittals since they collectively 

address the applicable infrastructure SIP 

requirements. 

Nevada’s submittals also requested 

that EPA reclassify the Nevada Intrastate 

Air Quality Control Region from priority 

IA to priority III for SO2 emergency 

episodes and remove historic, outdated 

language at 40 CFR 52.1475 from the 

state’s approved SIP. Our Notice of 

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Federal Register / Vol. 80, No. 212 / Tuesday, November 3, 2015 / Rules and Regulations 67653 

4 80 FR 28893, May 20, 2015. 

5 ‘‘Technical Support Document Evaluation of the 

Nevada Infrastructure SIP for 2008 Ozone, 2010 

NO2 and 2010 SO2’’ May 2015; ‘‘Nevada Pb 

Infrastructure SIP Technical Support Document, 

September 13, 2012; Technical Support Document: 

EPA Evaluation of Nevada Provisions for 1997 

Ozone, 1997 PM2.5, and 2006 PM2.5 NAAQS for 

Section 110(a)(2)(A) through (C), D((i)(II) and (D)(ii), 

E(i) and (E(iii), (F) through (M), July 2012; and 

Technical Support Document: EPA Evaluation of 

NV Provisions for Section 110 (a)(2)(E)(ii)/Section 

128 Conflict of Interest Requirements, July 2012. 

6See document number EPA–R09–OAR–2015– 

0812–0074, 0076 and 0077 at http://

www.regulations.gov under docket ID number EPA– 

R09–OAR–2014–0812. 

7 77 FR 64737 (October 23, 2012) Partial Approval 

and Partial Disapproval of Air Quality State 

Implementation Plans; Nevada; Infrastructure 

Requirements for Ozone and Fine Particulate 

Matter. 

8 77 FR 64737, October 23, 2012; 79 FR 15697, 

March 21, 2014. 

9 40 CFR 52.02(b). 

10 39 FR 42510, December 5, 1974. 

11 40 FR 25004, June 12, 1975, adding 40 CFR 

52.1485 to Subpart DD—Nevada. 

12 43 FR 26380, June 19, 1978 and 45 FR 52676, 

August 7, 1980. 

Proposed Rulemaking included these 

proposed changes. We also proposed to 

define the term Nevada Intrastate Air 

Quality Control Region and proposed to 

reclassify the Las Vegas Intrastate Air 

Quality Control Region from priority IA 

to priority III for SO2 emergency 

episodes. 

The rationale supporting EPA’s 

actions is explained in our May 20, 2015 

Notice of Proposed Rulemaking 

(proposed rule) and the associated 

technical support documents (TSDs) 

and will not be restated here.4 5 The 

proposed rule and TSD are available 

online at http://www.regulations.gov, 

Docket ID number EPA–R09–OAR– 

2015–0812. 

II. EPA’s Response to Comments 

The public comment period on EPA’s 

proposed rule opened on May 20, 2015, 

the date of its publication in the Federal 

Register, and closed on June 19, 2015. 

During this period, EPA received 

comments from an unidentified 

commenter, NDEP, and a single 

comment letter from the Sierra Club and 

Earthjustice. The comments are 

summarized below; full text of these 

comments is available in the docket to 

this final rule.6

A. Unidentified Commenter 

Comment: The commenter supported 

the partial disapproval of the Nevada 

SIP and discussed the health benefits of 

minimizing criteria pollutants and 

maintaining low levels of nitrogen 

dioxide, sulfur dioxide and ozone. The 

commenter asserted that with stricter 

standards, clean renewable energy may 

become more popular. 

Response: EPA acknowledges the 

support for our action. We do wish to 

clarify that EPA’s partial approval and 

partial disapproval of elements of the 

Nevada SIP will not result in changes to 

air quality regulation in Nevada, as the 

specific deficiencies have already been 

addressed by the delegation of EPA’s 

prevention of significant deterioration of 

air quality (PSD) program to NDEP and 

Washoe County. The need for this 

action, however, did result from EPA’s 

lowering of its NAAQS for ozone (in 

2008), nitrogen dioxide (in 2010) and 

sulfur dioxide (in 2010). 

B. NDEP Comments 

NDEP Comment 1: NDEP suggested 

that EPA revise and approve all 

proposed disapprovals in the proposed 

rulemaking. The commenter contended 

that the proposed disapproval of two 

elements, CAA section 110(a)(2)(C) and 

(D), were based on NDEP and Washoe 

County having a delegated PSD 

programs. The commenter further 

claimed that the proposed disapprovals 

stem from EPA’s interpretation that a 

delegated PSD program is not 

considered part of the applicable 

Nevada SIP. Next, NDEP cited Federal 

Register language from EPA’s approval 

and disapproval of a recent Nevada 

Infrastructure SIP, ‘‘the SIP, viewed 

broadly, thus includes both portions of 

the plan submitted by the State and 

approved by EPA as well as any FIP 

promulgated by EPA to substitute for a 

State plan disapproved by EPA or not 

submitted by a State.’’ 7 Then the 

commenter stated ‘‘the NDEP suggests 

that this broad interpretation of what 

constitutes Nevada’s applicable SIP is 

the appropriate interpretation . . . 

delegation is an acceptable method for 

implementing a PSD program and no 

penalties to the state apply if they 

choose that option.’’ 

Response: We disagree with NDEP’s 

suggestion that Nevada’s I–SIP 

Submittals should be approved for PSDrelated infrastructure SIP requirements 

for the NDEP and Washoe County 

jurisdictions. We note that NDEP and 

Washoe County submitted similar 

comments in 2012 and 2013 with 

respect to EPA’s proposed rulemaking 

on infrastructure SIPs for the 1997 

ozone, 1997 fine particulate matter 

(PM2.5), and 2006 PM2.5 NAAQS; and 

proposed rulemaking on infrastructure 

SIPs for the 2008 Pb NAAQS. Our 

response to NDEP’s comment largely 

reiterates our response to NDEP and 

Washoe County’s comments on 

delegated PSD FIP programs during our 

2012 and 2014 rulemakings on Nevada’s 

infrastructure SIPs.8

The CAA requires each state to adopt 

and submit a plan which provides for 

implementation, maintenance, and 

enforcement of the NAAQS. See CAA 

section 110(a)(1). Section 110(a)(2) sets 

forth the content requirements for such 

plans, including the requirement for a 

permit program as required in part C 

(‘‘Prevention of Significant Deterioration 

of Air Quality,’’ or ‘‘PSD’’) of title I of 

the CAA. Such plans are referred to as 

state implementation plans or SIPs. 

EPA’s authority to promulgate a FIP 

derives from EPA’s determination that a 

state has failed to submit a complete, 

required SIP submission or from EPA’s 

disapproval of a state submission of a 

SIP or SIP revision. See CAA section 

110(c)(1). The SIP, viewed broadly, thus 

includes both portions of the plan 

submitted by the state and approved by 

EPA as well as any FIP promulgated by 

EPA to substitute for a state plan 

disapproved by EPA or not submitted by 

a state.9

In 1974, EPA disapproved each state’s 

SIP with respect to PSD and 

promulgated a FIP as a substitute for the 

SIP deficiency (‘‘PSD FIP’’).10 In 1975, 

EPA codified the PSD FIP in each state’s 

subpart in 40 CFR part 52.11 In 1978 and 

1980, EPA amended the PSD regulations 

following the Clean Air Act 

Amendments of 1977 and related court 

decisions and amended the codification 

of the PSD FIP in each state’s subpart, 

including 40 CFR 52.1485, 

accordingly.12

Since then, EPA has approved the 

PSD SIP for the sources and geographic 

area that lie within the jurisdiction of 

Clark County Department of Air Quality 

(DAQ), and has delegated responsibility 

for conducting PSD review, as per the 

PSD FIP, to NDEP and Washoe County. 

Notwithstanding the delegation, 

however, the Nevada SIP remains 

deficient with respect to PSD for the 

geographic areas and stationary sources 

that lie within NDEP’s and Washoe 

County’s jurisdictions. As such, EPA’s 

disapproval of the infrastructure SIP 

submittals for those elements that 

require states to have a SIP that includes 

a PSD permit program, including CAA 

sections 110(a)(2)(C), (D)(i)(II), (D)(ii), 

and (J), is appropriate because EPA 

disapproved the state’s submitted plan 

as not adequately addressing PSD 

program requirements. To conclude 

otherwise would be inconsistent with 

the long-standing and current 

disapproval of the SIP for PSD for the 

applicable areas, with the statutory 

foundation upon which the PSD FIP is 

authorized, and with the obligation 

under section 110(a) for each state to 

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67654 Federal Register / Vol. 80, No. 212 / Tuesday, November 3, 2015 / Rules and Regulations 

13See Air Quality State Implementation Plans; 

Approvals and Promulgations: Virginia; 

Infrastructure Requirements for the 2010 Sulfur 

Dioxide National Ambient Air Quality Standards, 

79 FR 17043 (March 27, 2014); Approval and 

Promulgation of Air Quality Implementation Plans; 

West Virginia; Infrastructure Requirements for the 

2010 Sulfur Dioxide National Ambient Air Quality 

Standards, 79 FR 62022 (October 16, 2014); and 

Final Approval of Illinois Infrastructure SIP 

Requirements for the 2008 ozone, 2010 NO2, and 

2010 SO2 NAAQS, 79 FR 62042 (October 16, 2014). 

adopt and submit a plan for 

implementation, maintenance, and 

enforcement of the NAAQS that 

includes a PSD program. EPA’s 

delegation of the PSD FIP is not the 

same as state adoption and submittal of 

state or district rules meeting PSD 

requirements and EPA’s approval 

thereof. 

NDEP Comment 2: NDEP requested 

clarification regarding EPA’s ‘‘proposed 

partial disapproval,’’ at 80 FR 28898, 

column 3, ‘‘of the interstate pollution 

transport portion’’ of section 

110(a)(2)(D)(i)(II) i.e. prongs 1 and 2. 

The commenter noted that EPA has 

proposed approval of the transport 

analysis submitted for nitrogen dioxide, 

yet proposed no action on the transport 

analysis for ozone and sulfur dioxide. 

Response: In section IV.A. Proposed 

Approvals and Partial Approvals of our 

proposal notice we accidentally 

identified prongs 1–2 as being under 

section 110(a)(2)(D)(i)(II), when in fact 

prongs 1–2 are sub-elements of section 

110(a)(2)(D)(i)(I). However, a proposed 

partial approval, partial disapproval for 

section 110(a)(2)(D)(i)(II) is correct as 

this sub-element relates to prongs 3 and 

4 of section 110(a)(2)(D)(i). As our 

analysis makes clear in the TSD on pp. 

21–22, EPA proposed a partial approval, 

partial disapproval for prong 3 under 

section 110(a)(2)(D)(i)(II) because NDEP 

and Washoe County do not have SIP 

approved PSD programs. However, we 

acknowledge NDEP’s point that we 

proposed approval for prongs 1–2 for 

NO2, and proposed no action on 2008 

ozone or 2010 SO2 under section 

110(a)(2)(D)(i)(I). We thank NDEP for 

identifying this typographical error, and 

we have clarified it in the final 

rulemaking. 

C. Sierra Club/Earthjustice Comments 

Sierra Club/Earthjustice Comment 1: 

Sierra Club/Earthjustice asserted that 

the plain language of section 

110(a)(2)(A) of the CAA, and EPA 

regulations, at 40 CFR 51.112, requires 

that SIPs contain emissions limits 

adequate to prohibit NAAQS 

exceedances in areas not designated 

nonattainment. The legislative history of 

the CAA, case law, EPA regulations 

such as 40 CFR 51.112(a), and EPA 

interpretations in rulemakings require 

the inclusion of enforceable emission 

limits in an infrastructure SIP to prevent 

NAAQS exceedances in areas not 

designated nonattainment. The 

commenter argued that the Nevada 2008 

ozone infrastructure SIP submittal did 

not revise the existing ozone emission 

limits in response to the 2008 ozone 

NAAQS and failed to comport with 

asserted CAA requirements for SIPs to 

establish enforceable emission limits 

that are adequate to prohibit NAAQS 

exceedances in areas not designated 

nonattainment. 

The commenter believed that the 

main objective of the infrastructure SIP 

process ‘‘is to ensure that all areas of the 

country meet the NAAQS,’’ and that 

nonattainment areas are addressed 

through nonattainment SIPs. The 

commenter maintained the NAAQS are 

the foundation for specific emission 

limitations for most large stationary 

sources, such as coal-fired power plants. 

The commenter stated its belief that, 

pursuant to section 107(a), the states 

have primary responsibility to maintain 

air quality through the controls and 

programs contained in the state’s 

infrastructure SIPs as required by 

section 110(a)(2). The commenter also 

argued that, on its face, the CAA 

requires infrastructure SIPs ‘‘to be 

adequate to prevent exceedances of the 

NAAQS,’’ as provided in section 

110(a)(1), which requires states to adopt 

a plan for implementation, 

maintenance, and enforcement of the 

NAAQS, and the language in section 

110(a)(2)(A), which requires SIPs to 

include enforceable emissions 

limitations necessary to meet the 

requirements of the CAA and which the 

commenter claimed also should include 

the maintenance plan requirement. The 

commenter maintained the CAA 

definition of emission limit, when 

combined with the provisions stated 

above, requires ‘‘enforceable emission 

limits on source emissions sufficient to 

ensure maintenance of the NAAQS.’’ 

Response: EPA disagrees that section 

110 is clear ‘‘on its face’’ and must be 

interpreted in the manner suggested by 

Sierra Club/Earthjustice. As we have 

previously explained in response to the 

commenter’s similar comments on 

Virginia’s SO2 infrastructure SIP, 

section 110 is only one provision that is 

part of a complex structure governing 

implementation of the NAAQS program 

under the CAA, and it must be 

interpreted in the context of not only 

that structure, but in the context of the 

historical evolution of the Act.13

EPA interprets infrastructure SIPs as 

more general planning SIPs, consistent 

with the CAA as understood in light of 

its history and structure. When Congress 

enacted the CAA in 1970, it did not 

include provisions requiring states and 

the EPA to label areas as attainment or 

nonattainment. Rather, states were 

required to include all areas of the state 

in ‘‘air quality control regions’’ (AQCRs) 

and section 110 set forth the core 

substantive planning provisions for 

these AQCRs. At that time, Congress 

anticipated that states would be able to 

address air pollution quickly pursuant 

to the very general planning provisions 

in section 110 and could bring all areas 

into compliance with a new NAAQS 

within five years. Section 110(a)(2)(A)(i) 

specified that the section 110 plan 

provide for ‘‘attainment’’ of the NAAQS 

and section 110(a)(2)(B) specified that 

the plan must include ‘‘emission 

limitations, schedules, and timetables 

for compliance with such limitations, 

and such other measures as may be 

necessary to insure attainment and 

maintenance [of the NAAQS].’’ 

In 1977, Congress recognized that the 

existing structure was not sufficient and 

many areas were still violating the 

NAAQS. At that time, Congress for the 

first time added provisions requiring 

states and EPA to identify whether areas 

of a state were violating the NAAQS 

(i.e., were nonattainment) or were 

meeting the NAAQS (i.e., were 

attainment) and established specific 

planning requirements in section 172 

for areas not meeting the NAAQS. In 

1990, many areas still had air quality 

not meeting the NAAQS and Congress 

again amended the CAA and added yet 

another layer of more prescriptive 

planning requirements for each of the 

NAAQS. At that same time, Congress 

modified section 110 to remove 

references to the section 110 SIP 

providing for attainment, including 

removing pre-existing section 

110(a)(2)(A) in its entirety and 

renumbering subparagraph (B) as 

section 110(a)(2)(A). Additionally, 

Congress replaced the clause ‘‘as may be 

necessary to insure attainment and 

maintenance [of the NAAQS]’’ with ‘‘as 

may be necessary or appropriate to meet 

the applicable requirements of this 

chapter.’’ Thus, the CAA has 

significantly evolved in the more than 

40 years since it was originally enacted. 

While at one time section 110 of the 

CAA did provide the only detailed SIP 

planning provisions for states and 

specified that such plans must provide 

for attainment of the NAAQS, under the 

structure of the current CAA, section 

110 is only the initial stepping-stone in 

the planning process for a specific 

NAAQS. More detailed, later-enacted 

provisions govern the substantive 

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14See pages 1 and 2 of Guidance on Infrastructure 

State Implementation Plan (SIP) Elements under 

Clean Air Act Sections 110(a)(1) and 110(a)(2), 

September 2013. 

15Thus, EPA disagrees with Sierra Club’s general 

assertion that the main objective of infrastructure 

SIPs is to ensure all areas of the country meet the 

NAAQS, as we believe the infrastructure SIP 

process is the opportunity to review the structural 

requirements of a state’s air program. EPA, 

however, does agree with Sierra Club that the 

NAAQS are the foundation upon which emission 

limitations are set, but we believe, as explained in 

responses to other comments, that these emission 

limitations are generally set in the attainment 

planning process envisioned by part D of title I of 

the CAA, including, but not limited to, CAA 

sections 172 and 191–192. 

16The TSD for this action (‘‘Technical Support 

Document Evaluation of the Nevada Infrastructure 

SIP for 2008 Ozone, 2010 NO2 and 2010 SO2’’ May 

2015) is available online at www.regulations.gov, 

Docket ID Number EPA–R09–OAR–2014–0812– 

0038. 

17See Table 3 of ‘‘Technical Support Document 

Evaluation of the Nevada Infrastructure SIP for 2008 

Ozone, 2010 NO2 and 2010 SO2’’ May 2015. 

planning process, including planning 

for attainment of the NAAQS. 

Thus, EPA asserts that section 110 of 

the CAA is only one provision that is 

part of the complicated structure 

governing implementation of the 

NAAQS program under the CAA, as 

amended in 1990, and it must be 

interpreted in the context of that 

structure and the historical evolution of 

that structure. In light of the revisions 

to section 110 since 1970 and the laterpromulgated and more specific planning 

requirements of the CAA, EPA 

reasonably interprets the requirement in 

section 110(a)(2)(A) of the CAA that the 

plan provide for ‘‘implementation, 

maintenance and enforcement’’ to mean 

that the SIP must contain enforceable 

emission limits that will aid in attaining 

and/or maintaining the NAAQS. EPA 

has interpreted the requirement for 

emission limitations in section 110 to 

mean that the state may rely on 

measures already in place to address the 

pollutant at issue or any new control 

measures that the state may choose to 

submit. Finally, as EPA stated in the 

Infrastructure SIP Guidance which 

specifically provides guidance to states 

in addressing the 2010 SO2 NAAQS, 

‘‘[t]he conceptual purpose of an 

infrastructure SIP submission is to 

assure that the air agency’s SIP contains 

the necessary structural requirements 

for the new or revised NAAQS, whether 

by establishing that the SIP already 

contains the necessary provisions, by 

making a substantive SIP revision to 

update the SIP, or both.’’ 14 15

EPA addressed the adequacy of 

Nevada’s infrastructure SIP for section 

110(a)(2)(A) purposes in the TSD 

accompanying the May 20, 2014 Notice 

of Proposed Rulemaking and explained 

that the SIP includes enforceable 

emission limitations and other control 

measures ‘‘necessary or appropriate to 

meet the requirements of this 

chapter.’’ 16 These include permit 

requirements for major sources in 

attainment and nonattainment areas and 

general permits for minor stationary 

sources.17 As discussed in the TSD for 

this rulemaking, EPA finds the 

provisions for ozone emission 

limitations and measures adequately 

address section 110(a)(2)(A) to aid in 

attaining and/or maintaining the 

NAAQS and finds that the Clark County 

portion of the Nevada SIP has 

demonstrated it has the necessary tools 

to implement and enforce the NAAQS. 

Sierra Club/Earthjustice Comment 2: 

The commenter claimed that two 

excerpts from the legislative history of 

the 1970 CAA support an interpretation 

that SIP revisions under CAA section 

110 must include emissions limitations 

sufficient to show maintenance of the 

NAAQS in all areas of Nevada. The 

commenter also claimed that the 

legislative history of the CAA supports 

the interpretation that infrastructure 

SIPs under section 110(a)(2) must 

include enforceable emission 

limitations, citing the Senate Committee 

Report and the subsequent Senate 

Conference Report accompanying the 

1970 CAA. 

Response: EPA disagrees with the 

commenters claim. As provided in the 

previous response (Section C, response 

to Sierra Club/Earthjustice Comment 1), 

the CAA, as enacted in 1970, including 

its legislative history, cannot be 

interpreted in isolation from the later 

amendments that refined that structure 

and deleted relevant language from 

section 110 concerning demonstrating 

attainment. In any event, the two 

excerpts of legislative history the 

commenter cites provide that states 

should include enforceable emission 

limits in their SIPs. As provided in the 

response to Sierra Club/Earthjustice 

Comment 6 below, the TSD for the 

proposed rule explains why the Nevada 

SIP includes enforceable emissions 

limitations for ozone for the relevant 

area. 

Sierra Club/Earthjustice Comment 3: 

The commenter referenced two prior 

EPA rulemaking actions where EPA 

disapproved or proposed to disapprove 

SIPs and claimed they were actions in 

which EPA relied on section 

110(a)(2)(A) and 40 CFR 51.112 to reject 

infrastructure SIPs. The commenter 

directed attention to a 2006 partial 

approval and partial disapproval of 

revisions to Missouri’s existing plan 

addressing the SO2 NAAQS. In that 

action, EPA relied on section 

110(a)(2)(A) for disapproving an 

emission limit revision on the basis that 

the State failed to demonstrate the SIP 

revision was sufficient to ensure 

maintenance of the SO2 NAAQS; EPA 

cited to 40 CFR 51.112 as requiring that 

a plan demonstrates the rules in a SIP 

are adequate to attain the NAAQS. 

Second, the commenter cited a 2013 

disapproval of a revision to the SO2 SIP 

for Indiana, where the revision removed 

an emission limit that applied to a 

specific emissions source at a facility in 

the State. See 78 FR 17157, 17158, 

(March 20, 2013) (proposed rule on 

Indiana SO2 SIP) and 78 FR 78720, 

78721 (December 27, 2013) (final rule 

on Indiana SO2 SIP). The commenter 

believed that in the proposed 

disapproval, EPA relied on 40 CFR 

51.112(a) in proposing to reject the 

revision, stating that the State had not 

demonstrated that the emission limit 

was ‘‘redundant, unnecessary, or that its 

removal would not result in or allow an 

increase in actual SO2 emissions.’’ The 

commenter contended that EPA stated 

in that proposed disapproval that the 

State had not demonstrated that removal 

of the limit would not ‘‘affect the 

validity of the emission rates used in the 

existing attainment demonstration’’ and 

asserted that outside of startup, 

shutdown, and malfunction 

requirements, EPA’s 2013 I–SIP 

guidance did not discuss postponement 

of any I–SIP requirements. 

Response: EPA does not agree that the 

two prior actions referenced by Sierra 

Club/Earthjustice establish how EPA 

reviews infrastructure SIPs. It is clear 

from both the final Missouri rule and 

the proposed and final Indiana rule that 

EPA was not reviewing initial 

infrastructure SIP submissions under 

section 110 of the CAA, but rather 

reviewing revisions that would make an 

already approved SIP designed to 

demonstrate attainment of the NAAQS 

less stringent. EPA’s partial approval 

and partial disapproval of revisions to 

restrictions on emissions of sulfur 

compounds for the Missouri SIP in 71 

FR 12623 addressed a control strategy 

SIP and not an infrastructure SIP. The 

Indiana action provides even less 

support for the commenter’s position. 

78 FR 78720. The review in that rule 

was of a completely different 

requirement than the section 

110(a)(2)(A) SIP. Rather, in that case, the 

State had an approved SO2 attainment 

plan and was seeking to remove 

provisions from the SIP that it relied on 

as part of the modeled attainment 

demonstration. EPA proposed that the 

State had failed to demonstrate under 

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18EPA will take a separate action on CAA 

(a)(2)(D)(i)(I) Nevada ozone infrastructure SIP (i.e. 

the Good Neighbor SIP provisions). 

section 110(l) of the CAA why the SIP 

revision would not result in increased 

SO2 emissions and thus interfere with 

attainment of the NAAQS. See 78 FR 

17157. Nothing in that proposed or final 

rulemaking addresses the necessary 

content of the initial infrastructure SIP 

for a new or revised NAAQS. Rather, it 

is simply applying the clear statutory 

requirement that a state must 

demonstrate why a revision to an 

approved attainment plan will not 

interfere with attainment of the NAAQS. 

The commenter includes a footnote 

explaining that EPA’s infrastructure SIP 

guidance inappropriately postpones 

start-up, shutdown, and malfunction 

(SSM) requirements, offering no support 

for departing from the plain text of 

EPA’s regulations and past practices. 

The guidance states, ‘‘two elements 

that could not be governed by the 3-year 

submission deadline of section 110(a)(1) 

. . . the following elements are 

considered by the EPA to be outside the 

scope of infrastructure SIP actions: (1) 

Section 110(a)(2)(C) to the extent that it 

refers to permit programs (known as 

‘‘nonattainment new source review’’) 

under part D; and (2) section 110(a)(2)(I) 

in its entirety, which addresses SIP 

revisions for nonattainment areas. Both 

these elements pertain to SIP revisions 

that collectively are referred to as a 

nonattainment SIP or an attainment 

plan, which would be due by the dates 

statutorily prescribed under subparts 2 

through 5 under part D, extending as far 

as 10 years following area designations 

for some elements. Because the CAA 

directs states to submit these plan 

elements on a separate schedule, the 

EPA does not believe it is necessary for 

states to include these elements in the 

infrastructure SIP submission due 3 

years after adoption or revision of a 

NAAQS.’’ 

As discussed in detail in the TSD and 

NPR, EPA finds the Nevada SIP meets 

the appropriate and relevant structural 

requirements of section 110(a)(2) of the 

CAA that will aid in attaining and/or 

maintaining the NAAQS and that the 

State demonstrated that it has the 

necessary tools to implement and 

enforce a NAAQS.18

Sierra Club/Earthjustice Comment 4: 

The commenter discussed several cases 

applying the CAA which they claimed 

support their contention that courts 

have been clear that section 110(a)(2)(A) 

requires enforceable emissions limits in 

infrastructure SIPs to prevent 

exceedances of the NAAQS. The 

commenter cited to language in Train v. 

NRDC, 421 U.S. 60, 78 (1975), 

addressing the requirement for 

‘‘emission limitations’’ and stating that 

emission limitations ‘‘are specific rules 

to which operators of pollution sources 

are subject, and which, if enforced, 

should result in ambient air which meet 

the national standards.’’ The commenter 

also cited to Pennsylvania Dept. of 

Envtl. Resources v. EPA, 932 F.2d 269, 

272 (3d Cir. 1991) for the proposition 

that the CAA directs EPA to withhold 

approval of a SIP where it does not 

ensure maintenance of the NAAQS, and 

to Mision Industrial, Inc. v. EPA, 547 

F.2d 123, 129 (1st Cir. 1976), which 

quoted section 110(a)(2)(B) of the CAA 

of 1970. The commenter contends that 

the 1990 Amendments do not alter how 

courts have interpreted the 

requirements of section 110, quoting 

Alaska Dept. of Envtl. Conservation v. 

EPA, 540 U.S. 461, 470 (2004), which in 

turn quoted section 110(a)(2)(A) of the 

CAA and also stated that ‘‘SIPs must 

include certain measures Congress 

specified’’ to ensure attainment of the 

NAAQS. The commenter also quotes 

several additional opinions that 

purportedly stand for similar 

propositions: Mont. Sulphur & Chem. 

Co. v. EPA, 666 F.3d 1174, 1180 (9th 

Cir. 2012) (‘‘The Clean Air Act directs 

states to develop implementation 

plans—SIPs—that ‘assure’ attainment 

and maintenance of [NAAQS] through 

enforceable emissions limitations’’); 

Hall v. EPA, 273 F.3d 1146, 1153 (9th 

Cir. 2001) (‘‘Each State must submit a 

[SIP] that specif[ies] the manner in 

which [NAAQS] will be achieved and 

maintained within each air quality 

control region in the State’’); Conn. 

Fund for Env’t, Inc. v. EPA, 696 F.2d 

169, 172 (D.C. Cir. 1982) (CAA requires 

SIPs to contain ‘‘measures necessary to 

ensure attainment and maintenance of 

NAAQS’’); Mich. Dept. of Envtl. Quality 

v. Browner, 230 F.3d 181 (6th Cir. 2000) 

(EPA may not approve a SIP revision 

that does not demonstrate how the rules 

would not interfere with attainment and 

maintenance of the NAAQS). The 

commenter also cites Comm. For a 

Better Arvin v. EPA, No.11–73924, at*3– 

4 (9th Cir. May 20, 2015) as supporting 

their contention that the plain language 

of section 110(a)(2)(A) requires 

infrastructure SIPs to include 

enforceable emissions limits on sources 

sufficient to ensure maintenance of the 

NAAQS. 

Response: The EPA disagrees with 

this comment. None of the cited cases 

hold that section 110(a)(2)(A) 

unambiguously requires infrastructure 

SIPs to include detailed plans providing 

for attainment and maintenance of the 

NAAQS in all areas of the state, nor do 

they shed light on how section 

110(a)(2)(A) may reasonably be 

interpreted. With the exception of 

Train, none of the cases the commenter 

cites concerned the interpretation of 

CAA section 110(a)(2)(A) (or section 

110(a)(2)(B) of the pre-1990 Act). Rather, 

the courts reference section 110(a)(2)(A) 

(or section 110(a)(2)(B) of the pre-1990 

CAA) in the background sections of 

decisions in the context of either (1) a 

challenge to an EPA action on revisions 

to a SIP that were required and 

approved as meeting other provisions of 

the CAA, or (2) an enforcement action. 

In Train, 421 U.S. 60, the Court was 

addressing a state revision to an 

attainment plan submission made 

pursuant to section 110 of the CAA, the 

sole statutory provision at that time 

regulating such submissions. The issue 

in that case concerned whether changes 

to requirements occurring before 

attainment deadlines were variances 

(which would be addressed pursuant to 

the provision governing SIP revisions) 

or ‘‘postponements’’ (which would have 

to meet the prescriptive criteria of 

section 110(f) of the CAA of 1970). The 

Court concluded that EPA reasonably 

interpreted section 110(f) not to restrict 

a state’s choice of the mix of control 

measures needed to attain the NAAQS 

and that revisions to SIPs that would 

not impact attainment of the NAAQS by 

the attainment date were not subject to 

the limits of section 110(f). The issue 

was not whether a section 110 SIP must 

provide for attainment or whether 

emissions limits are needed as part of 

the SIP; rather the issue was which 

statutory provision governed when the 

state wanted to revise the emission 

limits in its SIP if such revision would 

not impact attainment or maintenance 

of the NAAQS. To the extent the 

holding in the case has any bearing on 

how section 110(a)(2)(A) might be 

interpreted, it is important to realize 

that in 1975, when the opinion was 

issued, section 110(a)(2)(B) (the 

predecessor to section 110(a)(2)(A)) 

expressly referenced the requirement to 

attain the NAAQS, a reference that was 

removed in 1990. 

The decision in Pennsylvania Dept. of 

Envtl. Resources was also decided based 

on the pre-1990 provision of the CAA. 

At issue was whether EPA properly 

rejected a revision to an approved plan 

where the inventories relied on by the 

state for the updated submission had 

gaps. The Court quoted section 

110(a)(2)(B) of the pre-1990 CAA in 

support of EPA’s disapproval, but did 

not provide any interpretation of that 

provision. Yet, even if the Court had 

interpreted that provision, EPA notes 

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that it was modified by Congress in 

1990; thus, this decision has little 

bearing on the issue here. 

At issue in Mision Industrial, 547 

F.2d 123, was the definition of 

‘‘emissions limitation,’’ not whether 

section 110 requires the state to 

demonstrate how all areas of the state 

will attain and maintain the NAAQS as 

part of their infrastructure SIPs. The 

language from the opinion the 

commenter quotes does not interpret but 

rather merely describes section 

110(a)(2)(A). Sierra Club/Earthjustice 

does not raise any concerns about 

whether the measures relied on by the 

Commonwealth in the infrastructure SIP 

are ‘‘emissions limitations’’ and the 

decision in this case has no bearing 

here. 

In Mont. Sulphur & Chem. Co., 666 

F.3d 1174, the Court was reviewing a 

federal implementation plan (FIP) that 

EPA promulgated after a long history of 

the state failing to submit an adequate 

SIP in response to EPA’s finding under 

section 110(k)(5) that the previously 

approved SIP was substantially 

inadequate to attain or maintain the 

NAAQS, which triggered the state’s 

duty to submit a new SIP to show how 

it would remedy that deficiency and 

attain the NAAQS. The Court cited 

generally to sections 107 and 

110(a)(2)(A) of the CAA for the 

proposition that SIPs should assure 

attainment and maintenance of NAAQS 

through emission limitations, but this 

language was not part of the Court’s 

holding in the case, which focused 

instead on whether EPA’s finding of SIP 

inadequacy, disapproval of the state’s 

responsive attainment demonstration, 

and adoption of a remedial FIP were 

lawful. The commenter suggests that 

Alaska Dept. of Envtl. Conservation, 540 

U.S. 461, stands for the proposition that 

the 1990 CAA Amendments do not alter 

how courts interpret section 110. This 

claim is inaccurate. Rather, the Court 

quoted section 110(a)(2)(A), which, as 

noted previously, differs from the pre1990 version of that provision and the 

court makes no mention of the changed 

language. Furthermore, Sierra Club/ 

Earthjustice also quotes the Court’s 

statement that ‘‘SIPs must include 

certain measures Congress specified,’’ 

but that statement specifically 

referenced the requirement in section 

110(a)(2)(C), which requires an 

enforcement program and a program for 

the regulation of the modification and 

construction of new sources. Notably, at 

issue in that case was the state’s ‘‘new 

source’’ permitting program, not its 

infrastructure SIP. 

Two of the cases Sierra Club/ 

Earthjustice cites, Mich. Dept. of Envtl. 

Quality, 230 F.3d 181, and Hall, 273 

F.3d 1146, interpret CAA section 110(l), 

the provision governing ‘‘revisions’’ to 

plans, and not the initial plan 

submission requirement under section 

110(a)(2) for a new or revised NAAQS, 

such as the infrastructure SIP at issue in 

this instance. In those cases, the courts 

cited to section 110(a)(2)(A) solely for 

the purpose of providing a brief 

background of the CAA. 

In Conn. Fund for Env’t, Inc. v. EPA, 

the Second Circuit was reviewing EPA 

action on a control measure SIP 

provision that adjusted the percent of 

sulfur permissible in fuel oil. 696 F.2d 

169 (2d. Cir. 1982). The Second Circuit 

denied a petition for review concerning 

whether EPA needed to evaluate effects 

of the SIP revision on one pollutant or 

effects of changes on all possible 

pollutants. The Second Circuit did not 

address required measures for 

infrastructure SIPs and nothing in the 

opinion addressed whether 

infrastructure SIPs needed to contain 

measures to ensure attainment and 

maintenance of the NAAQS. The court 

did note, however, that, ‘‘the need for 

flexibility in the administration of the 

[CAA] . . . should not be 

underestimated,’’ and highlighted the 

court’s past practice of being ‘‘careful to 

defer to EPA’s choice of methods to 

carry out its ‘difficult and complex job’ 

as long as that choice is reasonable and 

consistent with the Act.’’ Id. at 173–74 

(quoting Conn. Fund for the Env’t v. 

EPA, 672 F.2d 998, 1006 (2d Cir. 1982). 

Here, section 110(a)(2)(A) is reasonably 

interpreted to require states to submit 

SIPs that reflect the first step in their 

planning for attaining and maintaining 

a new or revised NAAQS and that they 

contain enforceable control measures 

and a demonstration that the state has 

the available tools and authority to 

develop and implement plans to attain 

and maintain the NAAQS. 

Finally, in Comm. for a Better Arvin 

v. EPA, the Petitioner challenged 

California’s plans to improve air quality 

in the San Joaquin Valley. At issue was 

whether EPA erred in approving the 

state’s SIP to comply with the NAAQS 

under section 109 concerning ozone and 

fine particulate matter. The court held 

that by approving the state’s plans, even 

though the plans did not include the 

state-adopted mobile emissions 

standards on which those plans rely to 

achieve their emissions reductions 

goals, EPA violated the CAA. However, 

the court found that EPA did not violate 

the CAA by not requiring inclusion of 

other state mechanisms in its plans, and 

that other control measures approved by 

EPA are enforceable commitments as 

the CAA requires. While the court cited 

to section 110(a)(2)(A) for the 

proposition that SIPs generally should 

assure attainment and maintenance of 

NAAQS through emission limitations, 

such language was not dispositive as to 

whether or not infrastructure SIPs 

specifically must include enforceable 

limits on sources sufficient to maintain 

the NAAQS. To the contrary, the CAA 

provides states and EPA with other tools 

to address concerns that arise with 

respect to purported violations of the 

NAAQS in a designated attainment area, 

such as the authority to redesignate 

areas pursuant to section 107(d)(3), the 

authority to issue a ‘‘SIP Call’’ pursuant 

to section 110(k)(5), or the general 

authority to approve SIP revisions that 

can address violations of the NAAQS 

through other appropriate measures. 

Sierra Club/Earthjustice Comment 5: 

The commenter cited to 40 CFR 

51.112(a), providing that ‘‘[e]ach plan 

must demonstrate that the measures, 

rules and regulations contained in it are 

adequate to provide for the timely 

attainment and maintenance of the 

[NAAQS]’’ and asserted that this 

regulation requires all SIPs to include 

emissions limits necessary to ensure 

attainment of the NAAQS. The 

commenter stated their belief that 

‘‘[a]lthough these regulations were 

developed before the Clean Air Act 

separated infrastructure SIPs from 

nonattainment SIPs—a process that 

began with the 1977 amendments and 

was completed by the 1990 

amendments—the regulations apply to 

I–SIPs.’’ Finally, the commenter stated 

that EPA has not changed the regulation 

since 1990, and that in the preamble to 

the final rule promulgating 40 CFR 

51.112, EPA expressly identified that its 

new regulations were not implementing 

Subpart D. See Air Quality 

Implementation Plans; Restructuring 

SIP Preparation Regulations, 51 FR 

40,656, 40,656 (Nov. 7, 1986) (‘‘It is 

beyond the scope of th[is] rulemaking to 

address the provisions of Part D of the 

Act. . . .’’). The commenter thus 

concludes that 40 CFR 51.112 was 

intended to apply to infrastructure SIPs. 

Response: The commenter’s reliance 

on 40 CFR 51.112 to support its 

argument that infrastructure SIPs must 

contain emission limits ‘‘adequate to 

prohibit NAAQS exceedances’’ and 

adequate or sufficient to ensure the 

maintenance of the NAAQS is not 

supported. As an initial matter, EPA 

notes and the commenter recognizes 

this regulatory provision was initially 

promulgated and ‘‘restructured and 

consolidated’’ prior to the CAA 

Amendments of 1990, in which 

Congress removed all references to 

‘‘attainment’’ in section 110(a)(2)(A). 

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19 Guidance on Infrastructure State 

Implementation Plan (SIP) Elements under Clean 

Air Act Sections 110(a)(1) and 110(a)(2), September 

2013 at page 2. 

And, it is clear on its face that 40 CFR 

51.112 applies to plans specifically 

designed to attain the NAAQS. EPA 

interprets these provisions to apply 

when states are developing ‘‘control 

strategy’’ SIPs such as the detailed 

attainment and maintenance plans 

required under other provisions of the 

CAA, as amended in 1977 and again in 

1990, such as sections 175A and 191– 

192. The commenter suggests that these 

provisions must apply to section 110 

SIPs because in the preamble to EPA’s 

action ‘‘restructuring and consolidating’’ 

provisions in part 51, EPA stated that 

the new attainment demonstration 

provisions in the 1977 Amendments to 

the CAA were ‘‘beyond the scope’’ of 

the rulemaking. It is important to note, 

however, that EPA’s action in 1986 was 

not to establish new substantive 

planning requirements, but rather was 

meant merely to consolidate and 

restructure provisions that had 

previously been promulgated. EPA 

noted that it had already issued 

guidance addressing the new ‘‘Part D’’ 

attainment planning obligations. Also, 

as to maintenance regulations, EPA 

expressly stated that it was not making 

any revisions other than to re-number 

those provisions. 51 FR 40657. 

Although EPA was explicit that it was 

not establishing requirements 

interpreting the provisions of new ‘‘Part 

D’’ of the CAA, it is clear that the 

regulations being restructured and 

consolidated were intended to address 

control strategy plans. In the preamble, 

EPA clearly stated that 40 CFR 51.112 

was replacing 40 CFR 51.13 (‘‘Control 

strategy: SOX and PM (portion)’’), 51.14 

(‘‘Control strategy: CO, HC, OX and NO2

(portion)’’), 51.80 (‘‘Demonstration of 

attainment: Pb (portion)’’), and 51.82 

(‘‘Air quality data (portion)’’). Id. at 

40660. Thus, the present-day 40 CFR 

51.112 contains consolidated provisions 

that are focused on control strategy SIPs, 

and the infrastructure SIP is not such a 

plan. 

Sierra Club/Earthjustice Comment 6: 

Citing section 110(a)(2)(A) of the CAA, 

the commenter contends that EPA failed 

to meaningfully evaluate whether the 

emissions limitations and other control 

measures are adequate to ensure 

attainment and maintenance of the 

NAAQS in EPA’s proposed approval of 

the Clark County Infrastructure SIP. The 

commenter further contends that 

‘‘nearly all of the legal authorities . . . 

pertain only to new or additional 

sources . . . (and) would do nothing to 

reduce existing sources.’’ 

Response: EPA believes that section 

110(a)(2)(A) of the CAA is reasonably 

interpreted to require states to submit 

infrastructure SIPs that reflect the first 

step in their planning for attainment 

and maintenance of a new or revised 

NAAQS. These SIP revisions should 

contain a demonstration that the state 

has the available tools and authority to 

develop and implement plans to attain 

and maintain the NAAQS and show that 

the SIP has enforceable control 

measures. In light of the structure of the 

CAA, EPA’s long-standing position 

regarding infrastructure SIPs is that they 

are general planning SIPs to ensure that 

the state has adequate resources and 

authority to implement a NAAQS in 

general throughout the state and not 

detailed attainment and maintenance 

plans for each individual area of the 

state. As mentioned above, EPA has 

interpreted this to mean, with regard to 

the requirement for emission 

limitations, that states may rely on 

measures already in place to address the 

pollutant at issue or any new control 

measures that the state may choose to 

submit. 

As stated in response to Sierra Club/ 

Earthjustice’s Comment 5, section 110 

of the CAA is merely one provision 

within the complex, post-1990 

regulatory structure governing 

implementation of the NAAQS, and 

must be interpreted in the context of 

that regulatory structure as well as the 

Act’s historical evolution. In light of the 

revisions to section 110 since 1970 and 

the later-promulgated and more specific 

planning requirements of the CAA, EPA 

reasonably interprets the requirement in 

section 110(a)(2)(A) of the CAA that the 

plan provide for ‘‘implementation, 

maintenance and enforcement’’ to mean 

that the SIP must contain enforceable 

emission limits that will aid in attaining 

and/or maintaining the NAAQS, and 

that the state demonstrate that it has the 

necessary tools to implement and 

enforce a NAAQS (e.g., adequate state 

personnel and an enforcement program). 

As discussed above, EPA has 

interpreted the requirement for emission 

limitations in section 110 to mean that 

the state may rely on measures already 

in place to address the pollutant at issue 

or any new control measures that the 

state may choose to submit. Finally, as 

EPA stated in the Infrastructure SIP 

Guidance which specifically provides 

guidance to states in addressing the 

2010 SO2 NAAQS, ‘‘[t]he conceptual 

purpose of an infrastructure SIP 

submission is to assure that the air 

agency’s SIP contains the necessary 

structural requirements for the new or 

revised NAAQS, whether by 

establishing that the SIP already 

contains the necessary provisions, by 

making a substantive SIP revision to 

update the SIP, or both.’’ 19

EPA believes that the proper inquiry 

is whether Nevada, including Clark 

County, has met the basic structural SIP 

requirements appropriate at the point in 

time EPA is acting upon the 

infrastructure submittal. Emissions 

limitations and other control measures 

needed to attain the NAAQS in areas 

designated nonattainment for that 

NAAQS are due on a different schedule 

from the section 110 infrastructure 

elements. A state, like Nevada, may 

reference pre-existing SIP emission 

limits or other rules contained in part D 

plans for previous NAAQS in an 

infrastructure SIP submission. For 

example, NDEP and Clark County 

submitted a list of existing emission 

reduction measures in the SIP that 

control emissions of ozone, which are 

included in the discussion of Element A 

of the TSD supporting the NPRM. These 

provisions have the ability to reduce 

ozone overall. We mention both NDEP 

and Clark County because they both 

regulate facilities within Clark County. 

As mentioned in the TSD supporting the 

NPRM, NDEP has the sole authority to 

regulate facilities that generate energy 

from steam boilers burning fossil fuels. 

Fuel combustion is the second largest 

source of NOX emissions (16%) after 

(primarily EPA regulated) mobile 

sources (82%). Some of the largest 

stationary source emitters of NOX in 

Clark County, such as the Reid Gardner 

Generating Station, are regulated by 

NDEP. 

While NOX emissions are regulated at 

the federal, state and local level, the 

commenter specifically raised concerns 

with Clark County’s legal authorities. 

EPA disagrees that Clark County legal 

authorities only pertain to new or 

additional sources. The County’s 

permitting programs and regulatory 

controls also apply to existing facilities. 

We acknowledge that the Clark County 

portion of the ozone SIP submittal does 

not propose new regulations for the 

Nevada SIP that would reduce 

emissions from existing sources, such as 

those commonly included in an 

attainment SIP, but that does not mean 

that existing sources are not regulated at 

the state and local level. 

EPA believes it is not appropriate to 

bypass the attainment planning process 

by imposing separate attainment 

planning process requirements outside 

the attainment planning process and 

into the infrastructure SIP process. Such 

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20Petition to the Administrator of the U.S. 

Environmental Protection Agency to Redesignate as 

Nonattainment 57 Areas with 2012 Design Values 

Violating the 2008 8-Hour National Ambient Air 

Quality Standards for Ozone (Docket: EPA–HQ– 

OAR–2014–0563, and included in the docket for 

this rulemaking) 

21 In addition to the factors discussed above, 

EPA’s response to the petition, a letter from Gina 

McCarthy to Seth Johnson, Sierra Club, dated 

August 14, 2014 (included in the docket for this 

rulemaking), also states that 22 of the 57 areas were 

again attaining the ozone NAAQS based on their 

2013 design values. 

22Nevada NOX emissions by category (e.g. mobile 

sources, point sources) can be found at http://www.

epa.gov/cgi-bin/broker?_service=data&_debug=0&_

program=dataprog.state_1.sas&pol=NOX&

stfips=32. 

23EPA’s August 14, 2014 letter to the Sierra Club 

also discussed increases in NOX and VOC emissions 

from the oil and gas sector but did not discuss the 

impact of biogenic VOC emissions, which are likely 

to remain constant. (EPA’s letter is available in the 

docket for EPA–HQ–OAR–2014–0563 at http://

www.regulations.gov/.) 

24Based on an emissions query of EPA’s Air 

Markets Division Database (for the year 2011) at 

http://ampd.epa.gov/ampd/, accessed on July 15, 

2015. 

25Clark County Ozone Advance Submission, 

submitted to Ms. Laura Bunte, from Lewis 

Wallenmeyer, Director, Clark County Department of 

Air Quality, at pp. 2–4, June 23, 2014, available in 

the docket for this rulemaking. 

26 (1) Clark County Department of Air Quality, 

Ozone Advance Program, Path Forward, June 2014 

and (2) Clark County Department of Air Quality, 

Ozone Advance Program, Progress Report, June 

2015. 

27EPA notes that two monitors identified by the 

commenter (Spring Mountain Youth Camp monitor 

(AQS ID 32–003–7771) and Las Vegas Paiute Tribal 

monitor (AQS ID 32–003–8000)) are considered 

non-regulatory and not comparable to the NAAQS. 

The Spring Mountain monitor is not operated per 

FEM specifications and cannot be considered a 

State/Local Air Monitoring Station and therefore, 

the collected data, while usable for research 

purposes, is not comparable to the NAAQS. 

Similarly, The Las Vegas Paiute Tribal monitor is 

designated as non-regulatory monitor operated for 

informational purposes only. 

actions would be disruptive and 

premature absent exceptional 

circumstances and would interfere with 

a state’s planning process. See In the 

Matter of EME Homer City Generation 

LP and First Energy Generation Corp., 

Order on Petitions Numbers III–2012– 

06, III–2012–07, and III2013–01 (July 30, 

2014) (hereafter, Homer City/Mansfield 

Order) at 10–19 (finding that the 

Pennsylvania SIP did not require 

imposition of SO2 emission limits on 

sources independent of the part D 

attainment planning process 

contemplated by the CAA). EPA 

believes that the history of the CAA, and 

intent of Congress for the CAA as 

described above, demonstrate clearly 

that it is within the section 172 and 

general part D attainment planning 

process that Nevada must include 

additional limits on ozone precursor 

emissions in order to demonstrate future 

attainment, where needed, for any areas 

in Nevada or other states that may be 

designated nonattainment in the future, 

in order to reach attainment of the 2008 

ozone NAAQS. 

EPA does not agree with the 

commenter’s reliance on 40 CFR 51.112 

to support its argument that 

infrastructure SIPs must contain 

emission limits adequate to provide for 

timely attainment and maintenance of 

the standard. As explained previously 

in response to Sierra Club/Earthjustice 

Comment 5, EPA notes this regulatory 

provision clearly on its face applies to 

plans specifically designed to attain the 

NAAQS and not to infrastructure SIPs 

which show the states have in place 

structural requirements necessary to 

implement the NAAQS. Therefore, EPA 

finds 40 CFR 51.112 inapplicable to its 

analysis of the Nevada ozone 

infrastructure SIP. 

Sierra Club/Earthjustice Comment 7: 

The commenter expressed concern that 

the design values for the Clark County 

air quality monitors exceeded the ozone 

NAAQS, yet the area remained 

designated attainment/unclassifiable. 

The commenter also referenced a Sierra 

Club petition, denied by EPA, to 

redesignate Clark County and other 

areas to nonattainment 20 and asserted 

that ‘‘design values for monitors in 

Clark County have exceeded the 2008 

0.075 ppm standard for every three-year 

period since 2001–2003 with the lone 

exception of 2009–2011.’’ 

Response: EPA’s decision not to 

redesignate the areas identified in the 

Sierra Club’s petition involved many 

factors, which we discuss in the next 

paragraph, including: the role of the 

declining national NOX and VOC 

emissions, particularly from mobile 

sources, which are primarily regulated 

by EPA; the limited planning 

requirements associated with marginal 

nonattainment areas; the development 

of collaborative strategies to bring newly 

violating areas back into compliance as 

soon as possible; and the fluctuation of 

ozone levels with varying weather 

conditions.21 We will discuss the factors 

mentioned in EPA’s response to the 

Sierra Club’s redesignation petition (for 

57 areas in the U.S.), specifically for 

Clark County. 

Our response to Sierra Club’s petition 

explained, ‘‘emissions of NOX in the 

U.S. are expected to decline by 29% 

from 2011 through 2018, even when 

accounting for increases in some 

sectors, such as the oil and gas 

industry.’’ NOX emissions from on-road 

mobile sources, locomotives, and nonroad engines are expected to comprise 

more than 90% of the reductions. The 

air quality of Clark County stands to 

benefit even more than the rest of the 

country on a relative basis, because 

mobile sources represent 82% of NOX

sources within Clark County, but only 

58% nationally.22 Our letter also noted 

10% declining VOC emissions from 

2011 to 2018, nearly all of which 

resulted from on-road and off-road 

engine rules.23

For Clark County’s remaining sources 

of NOX emissions, nearly 18% of the 

total NOX emissions for the 2011 

Emissions Inventory, more than 33% 

(3,066 tons) were generated by a single 

facility, the Reid Gardner Generating 

Station,24 though Clark County states 

this figure had dropped to 1,848 tons by 

2013.25 As we explained in the TSD for 

our proposed rulemaking, Reid Gardner 

retired three of four coal-fired boilers at 

the end of 2014. The fourth unit will be 

closed in 2017. Senate Bill 123, the 

Nevada law that required the early 

retirement of 557 megawatts (MW) of 

electrical generating capacity at Reid 

Gardner, allows for the replacement of 

these units with substantially cleaner 

burning natural gas-fired boilers (500– 

550 MW) and renewable generating 

capacity (150 MW). The cleaner burning 

facility at Reid Gardner should provide 

substantial air quality benefits for Clark 

County. 

Clark County has joined EPA’s 

voluntary Ozone Advance Program, a 

collaborative effort between EPA, states, 

tribes, and local governments. It 

encourages proactive efforts to improve 

air quality that could better position 

areas to stay in attainment. The docket 

for this rulemaking includes Clark 

County’s 2014 and 2015 submittals for 

the program.26 These documents 

acknowledge, as the comments note, 

increasing design values of the network 

monitoring system. The documents also 

discuss the use of grants from the 

(federal) Department of Transportation’s 

Congestion, Mitigation and Air Quality 

Incentive Program, non-regulatory 

measures to improve air quality, and the 

previously mentioned reductions at the 

Reid Gardner Generating Station. 

The commenter is correct in stating 

that Clark County’s design value 

appears to have increased in the years 

following the county’s designation as an 

attainment area (which had been based 

on 2009–2011 data forming the 2011 

design value). However, as we have 

noted, NO2 and VOC estimated 

emissions are declining within Clark 

County. Additionally, ozone is not 

dependent solely on the emission of 

precursors.27 Variations in weather 

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67660 Federal Register / Vol. 80, No. 212 / Tuesday, November 3, 2015 / Rules and Regulations 

28 80 FR 46271 (August 4, 2015) also at http://

www.epa.gov/airtransport/ozonetransport

NAAQS.html, Design Values listed in Ozone Design 

Values_Transport NODA.xlsx. 29 40 CFR 52.1485. 

conditions play an important role in 

determining ozone levels and thus 

design values can fluctuate from year to 

year, which EPA also noted in our 

response to the Sierra Club’s petition for 

redesignation. Recent EPA modeling, 

which included Clark County, estimated 

a 2017 Clark County ozone maximum 

design value of 72.8 parts per billion (or 

0.0728 parts per million (ppm)), below 

the 2008 ozone NAAQS of 0.075 ppm.28

III. Final Action 

Under CAA section 110(k)(3), and 

based on the evaluation and rationale 

presented in the proposed rule, the 

related TSDs, and this final rule, EPA is 

approving in part and disapproving in 

part Nevada’s Infrastructure Submittal 

for the 2008 Ozone, 2010 NO2 and 2010 

SO2 NAAQS. We are also taking final 

action on other regulatory changes 

discussed in our proposed rule. In the 

following subsections, we list the 

elements for which we are finalizing 

Infrastructure SIP approval or 

disapproval and provide a summary of 

the basis for those elements that are 

partially disapproved. We also describe 

the consequences of our disapprovals 

and discuss finalizing the other 

regulatory changes in our proposed rule. 

A. Summary of Infrastructure SIP 

Approvals and Partial Approvals 

EPA is approving Nevada’s 

Infrastructure SIP for the 2008 Ozone, 

2010 NO2 and 2010 SO2 NAAQS with 

respect to the following requirements: 

• 110(a)(2)(A): Emission limits and 

other control measures. 

• 110(a)(2)(B): Ambient air quality 

monitoring/data system. 

• 110(a)(2)(C) (in part): Program for 

enforcement of control measures and 

regulation of new stationary sources 

(full approval for Clark County). 

• 110(a)(2)(D) (in part, see below): 

Interstate Pollution Transport. 

• 110(a)(2)(D)(i)(I) (in part)— 

significant contribution to 

nonattainment, or prongs 1 and 2 (full 

approval of NDEP, Clark County and 

Washoe County for the NO2 NAAQS). 

• 110(a)(2)(D)(i)(II) (in part)— 

interstate transport—prevention of 

significant deterioration, or prong 3 (full 

approval for Clark County). 

• 110(a)(2)(D)(i)(II) (full approval)— 

visibility transport, or prong 4. 

• 110(a)(2)(D)(ii) (in part)—interstate 

pollution abatement and international 

air pollution (full approval for Clark 

County). 

• 110(a)(2)(E): Adequate resources 

and authority, conflict of interest, and 

oversight of local governments and 

regional agencies. 

• 110(a)(2)(F): Stationary source 

monitoring and reporting. 

• 110(a)(2)(G): Emergency episodes. 

• 110(a)(2)(H): SIP revisions. 

• 110(a)(2)(J) (in part): Consultation 

with government officials, public 

notification, and prevention of 

significant deterioration (PSD) and 

visibility protection (full approval for 

Clark County). 

• 110(a)(2)(K): Air quality modeling 

and submission of modeling data. 

• 110(a)(2)(L): Permitting fees. 

• 110(a)(2)(M): Consultation/ 

participation by affected local entities. 

EPA is taking no action on Interstate 

Transport—significant contribution to 

nonattainment for NDEP, Clark County 

and Washoe County on the Ozone and 

SO2 NAAQS [Section 110(a)(2)(D)(i)(II)]. 

B. Summary of Infrastructure SIP Partial 

Disapprovals 

EPA is disapproving Nevada’s 

Infrastructure Submittal with respect to 

the following infrastructure SIP 

requirements: 

• 110(a)(2)(C) (in part): Program for 

enforcement of control measures and 

regulation of new and modified 

stationary sources (disapproved for all 

NAAQS addressed by this rule and 

covered by the NDEP and Washoe 

County PSD permitting programs). 

• 110(a)(2)(D) (in part, see below): 

Interstate Pollution Transport. 

• 110(a)(2)(D)(i)(II) (in part): interstate 

transport—prevention of significant 

deterioration, or prong 3 (disapproval 

for all NAAQS addressed by this rule 

and covered by the NDEP and Washoe 

County PSD permitting programs). 

• 110(a)(2)(D)(ii) (in part)—interstate 

pollution abatement and international 

air pollution (disapproved for all 

NAAQS addressed by this rule and 

covered by the NDEP and Washoe 

County PSD permitting programs). 

• 110(a)(2)(J) (in part): Consultation 

with government officials, public 

notification, PSD, and visibility 

protection (disapproval for all NAAQS 

addressed by this rule and covered by 

the NDEP and Washoe County PSD 

permitting programs). 

As explained in our proposed rule, 

TSD, and section II of this final rule, we 

are disapproving Nevada’s 

Infrastructure Submittal for the NDEP 

and Washoe County portions of the SIP 

with respect to the PSD-related 

requirements of CAA sections 

110(a)(2)(C), 110(a)(2)(D)(i)(II), 

110(a)(2)(D)(ii), and 110(a)(2)(J) because 

the Nevada SIP does not fully satisfy the 

statutory and regulatory requirements 

for PSD permit programs under part C, 

title I of the Act. Both NDEP and 

Washoe County implement the Federal 

PSD program in 40 CFR 52.21 for all 

regulated new source review (NSR) 

pollutants, pursuant to delegation 

agreements with EPA.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. 

C. Consequences of Partial Disapprovals 

EPA takes disapproval of a state plan 

seriously. 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 in accordance with its obligations 

under section 110(k). 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 

disapprovals are the only path that is 

consistent with the Act at this time. 

Under section 179(a) of the CAA, final 

disapproval of a submittal that 

addresses a requirement of part D of 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, our partial disapproval of 

Nevada’s Infrastructure Submittals does 

not trigger mandatory sanctions under 

CAA section 179. 

In addition, CAA section 110(c)(1) 

provides that EPA must promulgate a 

FIP within two years after finding that 

a state has failed to make a required 

submission or disapproving a SIP 

submission in whole or in part, unless 

EPA approves a SIP revision correcting 

the deficiencies within that two-year 

period. As discussed in section III.B of 

this final rule and in our TSD, we are 

finalizing several partial disapprovals. 

These disapprovals do not result in new 

FIP obligations, because EPA has 

already promulgated FIPs to address the 

identified deficiencies. 

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Federal Register / Vol. 80, No. 212 / Tuesday, November 3, 2015 / Rules and Regulations 67661 

D. Summary of Other Regulatory 

Actions 

EPA is finalizing the other regulatory 

actions discussed in the proposed rule: 

Defining the term Nevada Intrastate Air 

Quality Control Region; reclassifying the 

Nevada Intrastate and Las Vegas 

Intrastate Air Quality Control Regions 

from priority IA to priority III for 

emergency episodes; removing historic 

language from the Nevada SIP, which 

refers to a facility no longer in existence. 

IV. Statutory and Executive Order 

Reviews 

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. 

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 

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 approves certain State 

requirements, and disapproves certain 

other State requirements, for inclusion 

into the SIP. Burden is defined at 5 CFR 

1320.3(b). 

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 this 

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 this rule on small entities, I 

certify that this action will not have a 

significant impact on a substantial 

number of small entities. This rule does 

not impose any requirements or create 

impacts on small entities. This partial 

SIP approval and partial SIP 

disapproval under CAA section 110 will 

not in-and-of itself create any new 

requirements but simply approves 

certain State requirements, and 

disapproves 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. 

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 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 approves 

certain pre-existing requirements, and 

disapproves 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 

action. 

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 approves certain State 

requirements, and disapproves 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. 

F. Executive Order 13175, Coordination 

With Indian Tribal Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This rule does not have 

tribal implications, as specified in 

Executive Order 13175. It will not have 

substantial direct effects on tribal 

governments, on the relationship 

between the Federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian tribes. 

In addition, the SIP is not approved to 

apply on any Indian reservation land or 

in any other area where EPA or an 

Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the rule does not have 

tribal implications and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law. 

Thus, Executive Order 13175 does not 

apply to this rule. 

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 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 partial 

approval and partial disapproval under 

CAA section 110 will not in-and-of itself 

create any new regulations but simply 

approves certain State requirements, 

and disapproves certain other State 

requirements, for inclusion into the SIP. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This 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. 

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67662 Federal Register / Vol. 80, No. 212 / Tuesday, November 3, 2015 / Rules and Regulations 

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. 

EPA believes that this 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. 

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 

rulemaking. 

K. Congressional Review Act 

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. The EPA will 

submit a report containing this rule 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). This rule will be effective on 

December 3, 2015. 

L. Petitions for Judicial Review 

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 January 4, 2016. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this rule 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 

40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Ozone, Nitrogen dioxide, Sulfur 

dioxide, Reporting and recordkeeping 

requirements. 

40 CFR Part 81 

Environmental protection, air 

pollution control, incorporation by 

reference, Nevada Intrastate Air Quality 

Control Region. 

Dated: September 30, 2015. 

Jared Blumenfeld, 

Regional Administrator, Region 9. 

Therefore, 40 CFR Chapter I is 

amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart DD—Nevada 

■ 2. In § 52.1470, paragraph (e), the 

table is amended by adding four entries 

after the entry for ‘‘Small Business 

Stationary Source Technical and 

Environmental Compliance Assistance 

Program’’ to read as follows: 

§ 52.1470 Identification of plan. 

* * * * * 

(e) * * * 

EPA-APPROVED NEVADA NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES

Name of SIP provision Applicable geographic 

or nonattainment area 

State submittal 

date EPA Approval date Explanation 

Air Quality Implementation Plan for the State of Nevada 

*******

Nevada’s Clean Air Act § 110(a)(1) and (2) 

State Implementation Plan for the 2008 

ozone NAAQS, excluding appendices A–F 

for NDEP; excluding the cover letter to 

NDEP and attachments A and B for Clark 

County; and excluding the cover letter to 

NDEP and Attachments A and B for Washoe 

County.

State-wide ................... 12/20/2012 [Insert Federal Register 

citation] 11/3/2015.

‘‘Infrastructure’’ SIP for 

NDEP, Clark County 

and Washoe County 

for the 2008 8-hour 

ozone standard. 

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EPA-APPROVED NEVADA NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES—Continued 

Name of SIP provision Applicable geographic 

or nonattainment area 

State submittal 

date EPA Approval date Explanation 

Nevada’s Clean Air Act § 110(a)(1) and (2) 

State Implementation Plan for the 2010 nitrogen dioxide NAAQS, excluding appendices 

A–G for NDEP; excluding the cover letter to 

NDEP and attachments A–C for Clark County; and excluding the cover letter to NDEP, 

Washoe County portion of Nevada’s State 

Implementation Plan for the 2010 nitrogen 

dioxide NAAQS, and attachments A and B 

for Washoe County.

NDEP jurisdiction and 

Clark County.

1/18/2013 [Insert Federal Register 

citation] 11/3/2015.

‘‘Infrastructure’’ SIP for 

NDEP and Clark 

County for the 2010 

1-hour nitrogen dioxide standard. 

Washoe County Portion of Nevada’s Clean Air 

Act § 110(a)(1) and (2) State Implementation 

Plan for the 2010 nitrogen dioxide NAAQS, 

excluding cover letter to NDEP and attachments A–B.

Washoe County .......... 3/15/2013 [Insert Federal Register 

citation] 11/3/2015.

‘‘Infrastructure’’ SIP for 

Washoe County for 

the 2010 1-hour nitrogen dioxide standard. 

Nevada’s Clean Air Act § 110(a)(1) and (2) 

State Implementation Plan for the 2010 sulfur dioxide NAAQS, excluding the cover letter and appendices A–E for NDEP; excluding 

the cover letter to NDEP and attachments 

A–C for Clark County; and excluding the 

cover letter to NDEP, attachments A–C, and 

public notice information for Washoe County.

State-wide ................... 6/3/2013 [Insert Federal Register 

citation] 11/3/2015.

‘‘Infrastructure’’ SIP for 

NDEP, Clark County 

and Washoe County 

for the 2010 1-hour 

sulfur dioxide standard. 

* * * * * * * 

■ 3. Section 52.1471 is revised to read 

as follows: 

§ 52.1471 Classification of regions. 

The Nevada plan is evaluated on the 

basis of the following classifications: 

Air quality control region 

Pollutant 

Particulate matter Sulfur oxides Nitrogen dioxide Carbon monoxide Ozone 

Las Vegas Intrastate ........................... I ............................ III .......................... III .......................... I ............................ I 

Northwest Nevada Intrastate .............. I ............................ III .......................... III .......................... III .......................... III 

Nevada Intrastate ................................ IA .......................... III .......................... III .......................... III .......................... III 

■ 4. Section 52.1472 is amended by 

adding paragraphs (h),(i) and (j) to read 

as follows: 

§ 52.1472 Approval status. 

* * * * * 

(h) 2008 8-hour ozone NAAQS: The 

SIPs submitted on December 20, 2012 

are partially disapproved for CAA 

elements 110(a)(2)(C), (D)(i)(II), (D)(ii), 

and (J) for the NDEP and Washoe 

County portions of the Nevada SIP; no 

action is taken for CAA element 

110(a)(2)(D)(i)(I). 

(i) 2008 1-hour nitrogen dioxide 

NAAQS: The SIPs submitted on January 

18, 2013 are partially disapproved for 

Clean Air Act (CAA) elements 

110(a)(2)(C), (D)(i)(II), (D)(ii), and (J) for 

the Nevada Division of Environmental 

Quality (NDEP) and Washoe County 

portions of the Nevada SIP. 

(j) 2008 2010 1-hour sulfur dioxide 

NAAQS: The SIPs submitted on June 3, 

2013 are disapproved for CAA elements 

110(a)(2)(C), (D)(i)(II), (D)(ii), and (J) for 

the NDEP and Washoe County portions 

of the Nevada SIP; no action is taken for 

CAA element 110(a)(2)(D)(i)(I) . 

§ 52.1475 [Removed and Reserved] 

■ 5. Section 52.1475 is removed and 

reserved. 

PART 81—DESIGNATION OF AREAS 

FOR AIR QUALITY PLANNING 

PURPOSES 

■ 6. The authority citation for part 81 

continues to read as follows: 

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

Subpart B—Designation of Air Quality 

Control Regions 

■ 7. Section 81.276 is added to read as 

follows: 

§ 81.276 Nevada Intrastate Air Quality 

Control Region. 

The Nevada Intrastate Air Quality 

Control Region consists of the territorial 

area encompassed by the boundaries of 

the following jurisdictions or described 

area (including the territorial area of all 

municipalities (as defined in section 

302(f) of the Clean Air Act, 42 U.S.C. 

1857h(f)) geographically located within 

the outermost boundaries of the area so 

delimited): 

In the State of Nevada: Churchill 

County, Elko County, Esmeralda 

County, Eureka County, Humboldt 

County, Lander County, Lincoln 

County, Mineral County, Nye County, 

Pershing County, and White Pine 

County. 

[FR Doc. 2015–27029 Filed 11–2–15; 8:45 am] 

BILLING CODE 6560–50–P 

mstockstill on DSK4VPTVN1PROD with RULES