# Pb Infrastructure SIP

Technical Support Document

Evaluation of Nevada Infrastructure SIP for 2008 Lead (Pb) NAAQS

U.S. EPA, Region 9

September 201 31 

### Table of Contents

Table of Contents

................................ ................................ ................................ ......................... 1 Summary

................................ ................................ ................................ ................................ ...... 1 Background

................................ ................................ ................................ ................................ .. 3 CAA Section 110(a)(2)(A)

– Emission limits and other control measures

................................ . 4 CAA Section 110(a)(2)(B)

– Ambient air quality monitoring/da ta system

................................ . 5 CAA Section 110(a)(2)(C)

– Program for enforcement of control measures and regulation of new and modified stationary sou rces.

................................ ................................ ................................ ..... 7 CAA Section 110(a)(2)(D)

– Interstate transport

................................ ................................ ...... 15 CAA Section 110(a)(2)(E)

– Adequate resources and authority, conflict of interest, and oversight of local governments and regional agencies

................................ ................................ ............... 20 CAA Section 110(a)(2)(F)

– Stationary source monitoring and reporting

................................ 25 CAA Section 110(a)(2)(G)

– Emergency episodes

................................ ................................ ... 31 CAA Section 110(a)(2)(H)

– SIP revisions

................................ ................................ ............... 33 CAA Section 110(a)(2)(I)

– Plan revisions for nonattainment areas

................................ ......... 34 CAA Section 110(a)(2)(J)

– Consultation with government officials; public notification; and PSD and visibility protection

................................ ................................ ................................ ................. 35 CAA Section 110(a)(2)(K)

– Air quality modeling and submission of modeling data

............. 40 CAA Section 110(a)(2)(L)

– Permitting fees

................................ ................................ ............. 44 CAA Section 110(a)(2)(M)

– Consultatio n/participation by affected local entities

.................. 46



### Summary

This technical support document (TSD) summarizes the U.S. Environmental Protection Agency’s (EPA) technical review of revisions to the Nevada State Implementation Plan (SIP) submitted by Nevada Division of Environmental Protection (NDEP) on behalf of NDEP, Clark County Department of Air Quality (DAQ), and Washoe County Health District Air Quality Manag ement Division (AQMD) . These revisions pertain t o the infrastructure SIP requirements, as per CAA section 110(a)(2), for the 2008 Pb national ambient air quality standards (NAAQS). They are as follows:

 October 12, 2011

– “ Nevada’s Clean Air Act § 110(a)(1) and (2) State Implementation Plan for the 2008 Pb NAAQS,” which includes the NDEP and Washoe County AQMD portions of the

state’s Pb infrastructure SIP submittal.

 July 23, 2012

– “Clark County Lead Infrastructure State Implementation Plan,” which is the

Cl ark County DAQ portion of the state’s Pb infrastructure SIP submittal.

 August 30, 2012

– “Revisions to Nevada’s Clean Air Act § 110(a)(2) State Implementation Plan Submittals,” which amended several of the state’s infrastructure SIP submittals, including t he October 12, 2011 submittal.

Herein, we refer to these submittals collectively as “Nevada ’s Pb Infrastructure Submittal

. ”

Based on our evaluation, we propose a partial approval and partial disapproval of Nevada’s Pb

Infrastructure Submittal. As discuss ed further below, we also propose that the partial disapprovals will not trigger a deadline for EPA to promulgate a federal implementation plan (FIP) because each given deficiency is either already adequately addressed by an existing FIP or EPA is already subject to a deadline to promulgate a FIP for that deficiency, with one exception. This proposal, if finalized, will trigger the obligation for EPA to promulgate a narrow FIP to cover the PSD increment requirements for

PM 2.5 , as explained below. Our evalua tion is summarized in the table below.2 Element Identification Evaluation (Meets Requirement?)

Elem. Sub

Elem. Description NDEP Clark Co. Washoe Co.

A Emission limits and other

control measures Yes Yes Yes

B i Ambient air quality

monitoring/data system (monitor, compile, analyze data) Yes Yes Yes

ii Ambient air quality monitoring/data system (make

data available to EPA) Yes Yes Yes

C Program for enforcement of

control measures and regulation of new stationary sources Partially (PSD FIP,

minor NSR) Partially

(PSD PM 2.5 increments and PM condensables, minor NSR) Partially

(PSD FIP)

D i Interstate transport (prongs 1

- 2) Yes

Interstate transport (prong 3/PSD) No (PSD FIP) No

(PSD PM 2.5 increments and PM condensables) No

(PSD FIP)

Interstate transport (prong 4/visibility) Yes

ii Interstate pollution abatement (§126, including requirement to notify states of potential impacts from new sources) and international air pollution (§115) No (PSD FIP) Yes No (PSD FIP)

E i Necessary assurances of

a dequate resources (personnel, funding, authority) Yes Yes Yes

ii C onflict of interest provisions (per § 128) Yes Yes Yes

iii Necessary assurances of

a dequate oversight of local governments and regional agencies Yes n/a n/a

F i Stationary source monitoring

system (installation, maintenance, replacement) Yes Yes Yes

ii Stationary source monitoring system (periodic reports) Yes Yes Yes

iii Stationary source monitoring system (correlation of reports

with emissions limitations or standards) Yes No (FIP deadline already set) Yes

G Emergency episodes Yes Yes Yes

H i SIP revisions (plan revisions for

NAAQS or improved methods of attaining) Yes Yes Yes

ii SIP revisions (remedy inadequacies identified by EPA) Yes Yes Yes3

I Plan revisions for nonattainment

areas n/a n/a n/a

J § 121 Consultation with government

officials Yes Yes Yes

§ 127 Public notification of

exceedances Yes Yes Yes

PSD/ visibility PSD and visibility protection

No (PSD FIP) No

(PSD PM 2.5 increments and PM condensables) No

(PSD FIP)

K i Air quality modeling Yes Yes Yes

ii Su bmission of modeling data Yes Yes Yes

L i Permitting fees (reviewing and

acting on application) Yes Yes Yes

ii Permitting fees (implementing and enforcing permit) Yes Yes Yes

M Consultation with / participation

by affected local political

subdivisions Yes Yes Yes



### Background

CAA section 110(a)(1) requires states to submit a plan that provides for the implementation, maintenance, and enforcement of the NAAQS no later than three years after the promulgation of a new or revised NAAQS. Section 110(a)(2) sets the content requirements of such a plan, which generally relate to the information and authorities, compliance assurances, procedural requirements, and control measures that constitute the "infrastructure" of a state's air quality management program. A SIP submittal addressing these requirements is referre d to as an “infrastructure SIP

. "

On October 1 5

, 2008 , EPA issued a revised NAAQS for lead. 1 This action triggered a requirement for states to submit an infrastructure SIP to address the applicable requirements of section 110(a)(2) within

three years of issuance of the revised NAAQS. In 2011, EPA issued “ Guidance on Section 110

Infrastructure SIPs for the 2008 Pb NAAQS ,” referred to herein as EPA’s 2011 Pb Guidance. 2
Depending on the timing of a given submittal, some states relied on the earlier draft version of this guidance, referred to herein as EPA’s 2011 Draft Pb Guidance. 3 EPA issued additional guidance on infrastructure SIPs on September 13, 2013. 4

1 Final rule signed October 15, 2008. The 1978 Pb standard (1.5 μg/m3 as a quarterly average) was modified to a rolling 3

- month average not to exceed 0.15 μg/m 3

. The EPA also revised the secondary NAAQS to 0.15 μg/m 3 and made it identical to the revised primary standard . (73 FR 66964, November 12, 2008)

2 Memorandum from Stephen D. Page, Director, Office of Air Quality Plan ning and Standards, to Regional Air Division Directors, Regions 1

- 10 (October 14, 2011).

3 “DRAFT Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS),” June 17, 2011 vers ion

. 4 See Memorandum dated September 13, 2013 from Stephen D. Page, Director, EPA Office of Air Quality Planning and Standards, to Regional Air Directors, EPA Regions 1

- 10, “ Guidance on Infrastructure State Implementation Plan (SIP)

Elements under Clean A ir Act S e ctions 110(a)(1) and 110(a)(2) ” ( referred to herein as “ 2013 Infrastructure SIP Guidance ” ).4

We have evaluated Nevada’s Pb Infrastructure Submittal in relation to the infrastructure SIP requirements (or “elements”) of CAA section 110(a)(2) and 40 CFR Part 51

. 5 I n the following pages, we

de scribe t he requirements, summarize Nevada’s submittal, and present our evaluation for each

infrastructure SIP element.



### CAA Section 110(a)(2)(A)

– Emission limits and other control measures

Section 110(a)(2)(A) requires SIPs to “include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of this Act.”

Nevada’s response to this requirement
The NDEP portion of Nevada’s Pb Infrastructure Submittal states th at the Nevada SIP includes enforceable emission limits and other control measures, means or techniques, sched ules for compliance

and other relat ed matters for Pb via provisions for particulate matter (PM) that are in the Nevada SIP. Referring to EPA’s draft Pb infrastructure SIP guidance memo, NDEP notes that Pb comprises a small

fraction of coarse and fine PM 6 and cites several SIP

- approved provisions, including Nevada Administrative Code (NAC) regulations and Nevada Air Quality Regulations (AQR), which limit emissions of particulate matter from open burning, fugitive dust, incineration, and other activities.

The Clark County portion of the submittal states that Clark County has adopted enforceable AQRs and provides an index of the AQRs, both those that are part of the Nevada SIP and those that are not (i.e.,

“local

- only”), in Attachment B of the July 23, 2012 submittal. Specifically for section 110(a)(2)(A), Clark County refers to AQRs regarding permitting (including greenhouse gases), excess emissions, emissions inventory, continuous monitoring, enforcement programs, and national emission standards for

hazardo us air pollutant (NESHAP) and new source performance standards (NSPS).

The Washoe County portion of the submittal identifies the regulation that authorizes the Control Officer of Washoe County AQMD to enforce all SIP

- approved measures. It then lists a wid e variety of enforceable regulations for source registration and operation and for emissions limitations for activities such as gasoline handling and storage, but without specifying what specific measures limit the emission

of Pb.

EPA’s evaluation

The thre e portions of Nevada’s Pb Infrastructure Submittal take three different approaches to addressing the requirements of CAA section 110(a)(2)(A). NDEP notes that Pb is a small fraction of PM and

identifies several SIP

- approved regulations that limit the emiss ion of PM, such as those for open burning (e.g., NAC 445B.22067) and incineration (e.g., NAC 445B.2207). 7 The Clark County portion of the

5 Two section 110(a)(2) requirements are considered by EPA to be outside the scope of infrastructure SIP actions because they pertain to plan requirements for nonattainment areas: (1) section 110(a)(2)(C) to the exten t it refers to permit programs under part D; and (2) section 110(a)(2)(I) in its entirety. Therefore, this TSD does not address these requirements.

6 N DEP references page 15 of EPA’s 2011 D raft Pb G uidance . While NDEP’s note that Pb comprises a sma ll fraction of coarse and fine PM may be relevant for section 110(a)(2)(A), the reference is taken from the draft guidance language on section 110(a)(2)(D), regarding interstate transport of air polluti on, wherein the context was to underscore that Pb comprises

a small fraction of particulates that would therefore not be transported significant distances or in significant quantities as PM.

7 The NDEP portion of Nevada’s Pb Infrastructure Submittal also cites two SIP

- approved regulations for PM emission limits on ore processing: NAC 445.808 (barite ore processing) and NAC 445.816 (precious metal processing). However, these regulations were rep ealed at the State level in 1991 and are therefore not part of our analysis for this element

. http://www.leg.state.nv.us/NAC/NACRepealed_Replaced.html5

submittal primarily refers to its permit program, which regulates the emission of Pb. Washoe County

cites its authorit y to adopt emission limits and a broad array of adopted emission regulations, without providing the context of those regulations to Pb.

Similar to NDEP, Clark and Washoe Counties have SIP

- approved regulations that limit PM emissions [e.g., Clark County Se ctions 28 and 42 (burning), 41 and 90 thru 94 (fugitive dust), and 30 (incineration) and Washoe County AQR 040.035 (open fires), 040.030 (dust control), and 040.050 (incineration)]. These emission limits demonstrate the state’s authority to adopt such limi ts for regulated pollutants and, to the extent that Pb is present in the fuel, fugitive dust, waste, or other materials, these PM emission limits may limit Pb emissions to some small degree. However, Nevada’s Pb Infrastructure Submittal

does not assess how much these measures might limit the emission of Pb nor whether any such measure is necessary or appropriate to attain or maintain the 2008 Pb NAAQS, as per CAA section 110(a)(2)(A).

Beyond the contents of Nevada’s Pb Infrastructure Submittal for CAA sect ion 110(a)(2)(A), each portion of the submittal also notes the absence of sources emitting over 0.5 tons per year (tpy) of Pb. 8
We reviewed the 2008 National Emissions Inventory (NEI) for the State of Nevada (i.e., all three air quality jurisdictions of th e state) 9 and found this assertion to be accurate with one exception: North Las Vegas Airport in Clark County had total emissions of 0.58 tpy of Pb. However, this amount is still below the threshold of 1.0 tpy for mandatory source

- oriented monitoring for a irports, per federal regulations at 40 CFR part 58, Appendix D, Section 4.5. Furthermore, the next largest Pb source state

wide is McCarran International Airport in Clark County, which had total emissions of 0.27 tpy of Pb

– well below the mandatory monito ring thresholds for airports (1.0 tpy) or stationary sources (0.5 tpy).

Section 110(a)(2)(A) does not establish the required stringency of emission limitations and other control measures, means or techniques but only requires that the SIP contain such lim itations as “may be necessary or appropriate to meet the applicable requirements of [the Act].” In this instance, the relevant "applicable requirements" of the Act include the requirements to implement, maintain, and enforce the Pb NAAQS under CAA section 110(a)(1). No area of Nevada has been designated nonattainment for the 2008 Pb NAAQS 10 nor does any source emit more than the monitoring threshold rate of 0.5 tpy for stationary sources and 1.0 tpy for airports, as discussed above. We reason that these fact s, in

combination with the SIP

- approved provisions cited in Nevada’s Pb Infrastructure Submittal, are

sufficient to meet the requirements of CAA section 110(a)(2)(A) for the 2008 Pb NAAQS. As such, w e propose to find that the Nevada SIP meets the requireme nts of section 110(a)(2)(A) for the 2008 Pb

N AAQS for the entire state.



### CAA Section 110(a)(2)(B)

– Ambient air quality monitoring/data system

Section 110(a)(2)(B) requires SIPs to “provide for establishment and operation of appropriate devices, methods, sy stems, and procedures necessary to

— (i) monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator.”

Nevada’s response to this requirement

Nevada’s Pb Infrastructure Submittal asserts that NDEP, Clark County DAQ, and Washoe County AQMD operate ambient air quality monitors for several NAAQS as required by federal regulations at 40 CFR part 58 and that they prepare annual monitoring network reports that are submitted to EPA. The

8 See the following pages of each agency’s portion of Nevada’s Pb Infrastructure Submittal: page 5 of the NDEP portion, page 9 of the Clark County portion, and pages 2 and 4 of the Washoe County portion.

9 See the file entitled “2013

- 08 Nevada Pb Source Data from 2008 NEI Database.xlsx” in the docket for this proposal.

10 76 FR 72097, November 22, 2011. The entire state of Nevada was designated unclassifiable/attainment for the 2008 Pb NAAQS.6

submittal not es that the NDEP and Washoe County AQMD jurisdictions of the state do not have any source that emits over 0.5 tpy of Pb or any airport that emits over 1.0 tpy of Pb, and therefore are not required to operate a Pb monitor. Clark County DAQ operates one Stat e and Local Air Monitoring Station (SLAMS) Pb monitor as part of their participation in the National Core multi

- pollutant monitoring stations (NCore) network. This monitor is quality controlled and quality assured according to EPA requirements.

EPA’s evaluation

State

- wide, Nevada is required to operate one population

- oriented monitor in Clark County as the County is part of the only Core Based Statistical Area (CBSA) with a population greater than 500,000 and operating an NCore site. See 40 CFR part 58 , Appendix D, Section 3(b). No source

- oriented monitors are required in Nevada as there are no stationary sources emitting more than 0.5 tpy of Pb and no airports emitting more than 1.0 tpy of Pb, as per 40 CFR part 58, Appendix D, Section 4.5. Nevada’s

Pb Infrastructure Submittal is consistent with these requirements and Clark County DAQ operates the one required Pb monitor in the state.

On February 28, 2013, EPA approved the most recent annual ambient air monitoring network plans for each agency, 11 including the following: NDEP 2012 Ambient Air Monitoring Network Plan, Clark County DAQ Annual Network Plan Report June 2012, and Washoe County AQMD 2012 Ambient Air Monitoring Network Plan. More recently, each agency has also submitted its 2013 annual ne twork plan, though EPA response letters to these plans are not due until 120 days after their respective submittal

.

While Nevada’s Pb Infrastructure Submittal focused on the implementation of the Pb monitoring requirements according to federal regulations , we also reference herein the SIP

- approved provisions that authorize the state and local agencies in Nevada to monitor air quality, submit data to EPA’s Air Quality System (AQS), and provide information on air quality monitoring activities. Per Nevada Rev ised Statute (NRS) 445B.210 (“Powers of Commission”), the Nevada State Environmental Commission (SEC) is vested with authority to adopt measures necessary for attainment and maintenance of national standards. Similarly, NRS 445B.230 (“Powers and duties of Department”) authorizes the Department of Conservation and Natural Resources (DCNR), which manages air quality planning and control responsibilities through NDEP, to make determinations and issue orders to implement the purposes of the state’s air pollutio n laws (i.e., NRS 445B.100 thru 445B.640), excluding laws for the control of emissions from engines (i.e., NRS 445B.700 thru 445B.845). Pb monitoring is necessary to assess the attainment and maintenance status of any CBSA with a population greater than 50 0,000, and thus falls within the construct of the measures and determinations that the SEC and DCNR may undertake to secure air quality that protects human health and welfare. In addition, NRS 445B.235 (“Additional Powers of Department”) authorizes the DCN R to apply for and receive funds from the federal government, which applies to EPA monitoring funds made available to states through CAA section 105.

With respect to Clark and Washoe Counties, under NRS 445B.500 (“Establishment and administration of progr am; contents of program; designation of air pollution control agency of county for purposes of federal act; powers and duties of local air pollution control board; notice of public hearings; delegation of authority to determine violations and levy administ rative penalties; cities and smaller counties; regulation of certain electric plants prohibited” ), paragraph (1)(c), the applicable district board of health, county board of health or board of county commissioners in counties with a population greater than

11 See these letters listed by date in the docket for this proposal. Note: There are some limited exc eptions explained in our approval letters to NDEP, Clark County DAQ, and Washoe County AQMD where EPA took no action. However, we do not deem these exceptions to disturb our conclusion that the three Nevada agencies operate an appropriate monitoring networ k to monitor, compile, and analyze ambient air quality for Pb.7

100,000 is designated as the air pollution control agency of the county for the purposes of state law and

the CAA insofar as it pertains to local programs. Such agencies are authorized to take all action s necessary to secure for the county the benefits of the CAA. Also, under NRS section 445B.500(1)(d), all of the powers and responsibilities provided for in NRS sections 445B.210, 445B.240 thru 445B.470, 445B.560, 445B.570, 445B.580, and 445B.640 are binding upon and inure to the benefit of local air pollut ion control authorities within their jurisdiction. Thus, the same types of authorities granted under

State law to th e SEC and the D CNR are extended to the authorized local air pollution control agencies in

the State of Nevada . This similar monitoring autho rity is implemented by Clark County Board of County Commissioners (BCC) and Washoe County District Board of Health (DBOH), through Clark County DAQ and Washoe County AQMD, respectively.

Conclusion By virtue of establishing and operating the Clark County P b monitor and providing the requisite data to EPA, and as supported by the SIP

- approved authorizing provisions outlined above, we propose to find

that Nevada’s air monitoring programs and data systems meet the req uirements of section 110(a)(2)(B )

for the 2 008 Pb NAAQS for the entire state.



### CAA Section 110(a)(2)(C)

– Program for enforcement of control measures and regulation of new and modified stationary sources.

Section 110(a)(2)(C) requires that each SIP “ include a program to provide for the enforcement o f the measures described in section 110(a)(2)(A), and regulation of the modification and construction of any stationary source ” [i.e., new source review (NSR)] “ within the areas covered by the plan as necessary to

assure that the [ NAAQS ] are achieved, including a permit program as required in parts C and D of title I

of the Act. ”

With respect to the requirement in section 110(a)(2)(C) to include a program to provide for the enforcement of control measures, EPA is evaluating the state ’s g eneral enforcement authorities to determine whether they provide an adequate infrastructure for SIP enforcement statewide.

With respect to the requirement in section 110(a)(2)(C) to include a program to provide for regulation of

the modification and const ruction of stationary sources, E PA is evaluating certain “structural” elements

of the state ’s Prevention of Significant Deterioration (PSD) programs under part C of title I of the CAA to determine whether these programs are adequate for infrastructure SIP purposes. Specifically, EPA recently evaluated the Nevada SIP to determine whether it contain ed the following required elements of a PSD program: 12

(1) Provisions identifying NO

x as an ozone precursor consistent with the requirements of EPA’s Phase 2 implemen tation rule for the 1997 8

- hour ozone NAAQS, 70 FR 71612 (November 29, 2005) [ codified at 40 CFR 51.166(b)(1)(ii), (b) (2)(ii), (b)(23)(i), (b)(49)(i)] ; (2) Provisions to regulate PM 2.5 , including condensable PM, and its precursor emissions (sulfur dioxide (SO 2 ) in all areas, and NO

x and/or VOC as appropriate), consistent with the requirements of EPA’s NSR/PSD implementation rule for the 1997 PM 2.5 NAAQS, 73 FR 28321 (May 16, 2008) [ codified at 40 CFR 51.166(b)( 23)(i), (b)(49)] ; and (3) Provisions to regulate Gree nhouse Gases (GHGs) consistent with EPA’s regulations to implement the PSD program for GHGs, including “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule,” 75 FR 31514 (June 3, 2010) and “Limitation of

12 See our proposed (August 3, 2012, 77 FR 46361) and final rules (October 23, 2012, 77 FR 64737) on Nevada’s
infrastructure SIPs for the 1997 ozone, 1997 PM 2.5 , and 2006 PM 2.5 NAAQS.8

Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting

- Sources in State Implementation Plans,” 75 FR 82536 (December 30, 2010), as applicable.

We concluded in our final rulemaking that the Clark County portion of the state met these r equirements though its SIP

- approved PSD program and that NDEP and Washoe County did not have such SIP

approved PSD programs, but rather they implemented delegated PSD FIPs. The status of these programs has not changed since and, therefore, our conclusions with respect to these “structural” elements carry forward, with one exception: we inadvertently indicated that Clark County’s PSD program addresses PM condensables, which, in fact, we had cited as part of a limited disapproval in a separate notice on

Clark County’s permit program rules. 13

In addition, we are evaluating the Nevada SIP to determine whether the SIP

- approved PSD program in Clark County contains the following required element of a PSD program:

(4) Provisions to regulate PSD increments consistent with the requirements of EPA’s PSD implementation rule for the 1997 PM 2.5 and 2006 PM 2.5 NAAQS, 75 FR 64864 (October 10, 2010) [codified at 40 CFR 51.166 (c ) ]

.

Generally, section 110(a)(2)(C) requires that an infrastructure SIP for the 2008 Pb NAAQS contain SIP

approved PSD, nonattainment N SR , and minor NSR permit programs adequate to implement these

standards. EPA is assessing the status of Nevada’s minor NSR programs for Pb. Ho wever, EPA is not evaluating part D nonattainment area requirements (suc h as the nonattainment NSR program) in this proposed action because these SIPs are due on a separate schedule under CAA section 172(b). Additionally, EPA is not proposing to approve or disapprove any state rules with regard to the NSR Reform requirements. EPA intends to act on SIP submittals that are made for purposes of adopting NSR Reform through a separate rulemaking process.

Nevada’s response to this requirement
The NDEP portion of Nevada’s Pb Infrastructure Submittal references a number of NAC regulati ons for compliance and enforcement measures and notes that NDEP has full delegation of the PSD FIP program at 40 CFR 52.21. Also, this portion of the submittal refers to the SIP

- approved Nevada AQR Article 13 (“General Provisions for the Review of New Sour ces”) and states that this provision would be replaced by three NACs submitted by NDEP to EPA on January 24, 2011. 14

The Clark County portion of the submittal highlights AQR Section 4 (“Control Officer”) as providing authority for the Control Officer to en force all AQRs, including rules for compliance schedules (Section 10), permit rules for major and minor sources (various sub

- sections of Section 12), and rules to address hazardous air pollutants (Section 13), New Source Performance Standards (Section 14), excess emissions (Section 25), and other emission limitations (Sections 26

- 28). This portion of the submittal also notes that the threshold (i.e., significant level) for major sources of Pb is 0.6 tpy and that the

13 This def

iciency was identified in our October 18, 2013 final rule on Clark County’s permit program submittals. See 77 FR

64039 at 64040.

14 Nevada AQR Article 13 was approved into the Nevada SIP on March 26, 1975 (40 FR 13306) with clarifications on January 9, 1978 (43 FR 1341). Certain paragraphs of NAQR Article 13 were removed from the Nevada SIP on September 27, 2012 (77 FR 59321). In that action, EPA also approved NAC 445B.310 (“Environmental evaluation: Applicable sources and other subjects; exemption”) and 445 B.311 (“Environmental evaluation: Contents; consideration of good engineering practice stack height”), and partially approved NAC 445B.308 (“Prerequisites and conditions for issuance of certain operating permits; compliance with applicable state implementa tion plan”), into the Nevada SIP.9

County’s PSD regulations were revised to address greenhouse gases. Beyond this authority and related permit rule and non

- permit rule emission limits, this portion notes that additional local rules are enforced by the Control Officer.

The Washoe County portion of the submittal states that Washoe County AQR 020.005 (“Board of

Health

– Powers and Duties”) authorizes the Control Officer to enforce all SIP measures, including a list

of SIP

- approved emission limits also cited for CAA section 110(a)(2)(A). It also notes that Washoe County AQMD has full delegation of the PSD FIP program at 40 CFR 52.21. Like the Clark County portion of the submittal, the Washoe County portion notes additional Washoe County AQRs that have been adopted locally for authority [e.g., 020.020 (“Control Officer

– Powers and Duti es”)], construction of modification of permitted operations (e.g., 030.500 and 030.502 thru 030.508), and operating permits (030.095) as supportive of CAA section 110(a)(2)(C).

EPA’s evaluation

1. Program for enforcement of control measures

EPA has evaluated the general enforcement authorities at the state level and those for Clark and Washoe

counties to determine whether they provide an adequate infrastructure for SIP enforcement statewide

. While Nevada’s submittals identified a number of enforcement regulat ions, the underlying authority provided by state statute is an important basis for the state and county enforcement programs; we discuss

it first below.

At the state level, the following statutes provide enforcement authori ty:

 445B.210 (“Powers of Commiss ion”)(71 FR 51766, August 31, 2006)

.

 445B.230 (“Powers and duties of Department”) (72 FR 11, January 3, 2007)

.

 445B.450 (“Notice and order by Director; hearing; alternative procedures”)(72 FR 11, January 3, 2007)

.

 445B.460 (“Injunctive relief”)(72 FR 11, January 3, 2007)

.

 455B.640 (“Levy and disposition of administrative fines; additional remedies available; penalty”)(72 FR 11, January 3, 2007)

.

Nevada has used the authority provided by NRS 445B.210 to adopt specific enforcement regulations,

such as those cited in the NDEP portion of Nevada’s Pb Infrastructure Submittal, which provide enforcement authority for all air pollutants regulated by the state. Such regulations include, as listed in the submittal, NAC 445B.225

, NAC 445B.227

, NAC 445B.229

, NAC 445B. 250

, NAC 445B.252

, NAC

445B.275 , and NAC 445B.277

.

There are two provisions, however, that do not provide support for Nevada’s program for enforcement with respect to CAA section 110(a)(2)(C). First, NAC 445.667, regarding excess emissions (i.e., pertaining to SSM), was replaced by NAC 445B.232, which has not yet been approved into the Ne vada SIP. EPA proposed to rescind NAC 445.667 (per Nevada’s request) from the Nevada SIP via a proposed

appro val of Nevada’s request to rescind this regulation. Secondly, NAC 445.694, regarding emission discharge information and record storage, was replaced by NAC 445B.269, which was subsequently repealed in 1995. Since neither provision is currently in place, it is not clear how Nevada intended that these regulations support the enforcement of the emission limitation regulations cited in Nevada’s Pb

Infrastructure SIP for section 110(a)(2)(A) for sources under NDEP’s jurisdiction.10

Notwithstanding these two provi sions, on the basis of the other statutory and regulatory provisions identified by Nevada, which have been approved into the SIP, we find that Nevada has an adequate program for enforcement of its provisions for emission limits at the state level.

For Cl ark and Washoe counties, NRS 445B.500 requires local programs to include emission control standards that are equivalent or stricter than those at the state level, and to provide adequate enforcement

of such emission control standards. 15 See NRS 445B.500(1)( b). This statute also states that all of the powers and responsibilities provided for in NRS sections 445B.210, 445B.240 to 445B.470, inclusive, 445B.560, 445B.570, 445B.580, and 445B.640 are binding upon and inure to the benefit of local air pollution con trol authorities within their jurisdiction (i.e., Clark County BCC acting through Clark County DAQ, and Washoe County DBOH acting thro ugh the Wash oe County AQMD ). Thus, the same types of enforcement authorities granted under NRS 445B.210, 445B.450, 445B.460, and 455B.640, as identified above, are extended to the authorized local air pollution control agencies in the s tate of

Nevada. [For further discussion of leg al authority, s ee our discussion below for CAA section 110(a)(2)(E)].

In Clark County, SIP rule Section 4 describes the Control Officer’s duties with respect to corrective action orders. In addition, NRS 445B.500(3) allows the Clark County BCC (as the loc al air pollution control board for a county whose population is greater than 700,000) to “delegate to an independent hearing officer or hearing board its authority to determine violations and levy administrative penalties for violations.” The Clark County BCC has delegated certain enforcement authorities to Hearing Officers. Specific local rules that provide for a program for enforcement of emissions limitations in the Clark County portion of the Nevada SIP include Section 5 ("Interference with Control Offi cer"), Section 6 ("Injunctive Relief"), and Section 8 ("Persons Liable for Penalties

- Punishment; Defense"). These rules suffice for the purposes of CAA section 110(a)(2)(C) for the Clark County portion of the Nevada

SIP.

In Washoe County, the Control Of ficer (i.e., the District Health Officer of the Washoe County Health District) has been delegated certain permitting and enforcement responsibilities. Washoe County AQR 020.020 (“Control Officer

– Powers and Duties”), cited in the local rules listing for t his element in the Washoe County portion of Nevada’s Pb Infrastructures SIP, describes the Control Officer’s authorities and duties to issue corrective action orders and to request that the DBOH levy administrative fines. The

rule in the Nevada SIP coverin g the same authorities as AQR 020.020 is AQR 020.025 (May 14, 2973, 38 FR 12702). These authorities are further described in the local rule AQR 020.030 (“Notice of Violations”); the same authority in the Nevada SIP is found in AQR 020.040 (July 27, 1972, 3 7 FR 15086). The Control Officer’s designated agents for these permitting and enforcement responsibilities, as provided by local rule AQR 020.020, are the Director and the Branch Chief of the Permits and Compliance Branch within Washoe County AQMD. Specifi c local rules that provide for a program for enforcement of emissions limitations in the Washoe County portion of the Nevada SIP include 020.035 ("Violations of Regulations"), 020.045 ("Citation"), 020.050 ("Administrative Fines"), and 020.055 ("Injunctive Relief"). These rules suffice for the purposes of CAA section 110(a)(2)(C) for the Washoe County portion of the Nevada SIP.

2. Prevention of Significant Deterioration (PSD) permit program

Area designations by EPA define which areas of the state are subject to PSD requirements under part C of title I of the CAA (i.e., unclassifiable/attainment areas), or subject to the nonattainment NSR

15 7 7 FR 64737 (October 23, 2012 ).11

requirements under part D of title I the CAA (i.e., nonattainment areas), with respect to the r elevant NAAQS. NDEP is respo nsible for NSR (including nonattainment NSR, PSD, and minor NSR) for Nevada, excluding the Clark County and Washoe County portions of the state . Clark County DAQ and Washoe County AQMD are responsible for NSR in their respective counties, with the exceptio n of fossil

fuel

- fired steam

- generating power plants, for which NDEP is also responsible. 16

Effective December 31, 2011, EPA designated the whole state of Nevada as unclassifiable/attainment for the 2008 Pb NAAQS. 17

NDEP and Washoe County With respect to the Nevada SIP, EPA has promulgated FIPs to address the PSD program requirements under part C of title I of the CAA by incorporating 40 CFR 52.21 into the Nevada SIP, except for Clark County (see 40 CFR 52.1485, “Significant deterioration of air quality”). 18

As noted in Nevada’s Pb Infrastructure Submittal, EPA fully delegated the implementation of the federal PSD programs to NDEP ( last revised on November 7, 2012 ) and to Washoe County (March 13, 2008).
However, until a state adopts and submits a PSD program for EPA approval that applies to all regulated

NSR pollutants, including GHGs, its SIP is not approvable with respect to CAA section 110(a)(2)(C). Therefore, with respect to section 110(a)(2)(C), we propose to disapprove the NDEP and Washoe County portions of N evada’s Pb Infrastructure Submittal on the basis that the Nevada SIP does not contain adequate provisions to meet the PSD requirements of section 110(a)(2)(C) for the 2008 Pb NAAQS for sources under NDEP’ s jurisdiction (including fossil fuel

- fired steam

- generating power plants statewide) and sources under Washoe County’s jurisdiction. We note that although the SIP remains deficient with respect to PSD requirements in the NDEP and Washoe County portions of the

SIP , no further action is necessary for these purposes because the Federal PSD program addresses the

deficiencies in these two areas

.

Clark County In our proposed and final rules on Nevada’s infrastructure SIPs for the 1997 ozone, 1997 PM 2.5 , and

2006 PM 2.5 NAAQS, we evaluated Clark County’s permit program for certain “structural” PSD elements under part C of title I of the CAA and determined that it contained the following: 19

(1) Provisions identifying NO

x as an ozone precursor, (2) Provisions to regulate P M 2.5 and its precursor emissions, and (3) Provisions to regulate Greenhouse Gases (GHGs)

.

The SIP

- approved PSD program in Clark County continues to contain those required elements.
However, Clark County regulations for PSD under AQR Section 12 do not yet address condensable PM,

con sistent with the requirements of EPA’s NSR/PSD implementation rule for the 1997 PM 2.5 NAAQS. 20

Furthermore, Clark County has not yet revised its PSD increment provisions ( see Clark County AQR

16 With respect to fossil fuel

- fired steam

- generating power plants, by State law, NDEP retains permitting authority state

- wide (i.e., including such sources in Clark and Washoe c ounties). See NRS 445B.500, subsections (5) and (6); 7 7 FR 64737 (October 23, 2012 ).

17 76 FR 72097, November 22, 2011.

18 For more background on PSD

- related actions in Nevada, see 47 FR 26620 at 2662 0 , June 21, 1982 and as amended by 48 FR 28271, June 21, 1983; 68 FR 11323, March 10, 2003; and 68 FR 74489, December 24, 2003.

19 See our proposed (August 3, 2012, 77 FR 46361) and final rules (October 23, 2012, 77 FR 64737) on Nevada’s
infrastructure SIPs for the 1997 ozone, 1997 PM 2.5 , and 2006 PM 2.5 NAAQS.

20 This defici ency was identified in our October 18, 2013 final rule on Clark County’s permit program submittals. See 77 FR

64039 at 64040.12

Section 12.2.3) such that new and major sources of PM 2.5 estimate significant deterioration of ambient air quality for PM 2.5 consistent with the increment requirements of EPA’s 2010 PSD implementation

rule for the 1997 PM 2.5 and 2006 PM 2.5 NAAQS. 21

Because Clark County’s SIP

- approved PSD p rogram does not address these “structural” elements under part C of title I of the CAA and 40 CFR 51.166 (b)(49) and 40 CFR 51. 166 (c ) , we propose to disapprove the Clark County portion of Nevada’s Pb Infrastructure Submi ttal on the basis that the Nevada SIP does

not meet the PSD

- related requirements of CAA section 110(a)(2)(C) in Clark County.

As a result of EPA’s October 18, 2012 limited disapproval of Clark County’s PSD program with respect to the requirements regarding condensable particular matter (77 FR 64039), EPA is already obligated to promulgate a FIP to address this deficiency no later than two years from the effective date of that action,
i.e., by November 19, 2014. This FIP obligation remains unchanged. 22 Since that time, the July 20,

2012 deadl ine for submitting adopted PM 2.5 increments consistent with EPA’s requirements in 40 CFR

51. 166 (c) has passed ( see 75 FR 64864 at 64898), and Clark County’s PSD program is now deficient with respect to this requirement as well. Thus, we propose to disappr ove the Clark County portion of Nevada’s Pb Infrastructure Submittal on the basis of these two PSD program deficiencies. If finalized, this proposed disapproval would require EPA to promulgate a narrow FIP establishing PM 2.5 increments

consistent with the requirements of 40 CFR 51.166(c) in Clark County, unless Nevada submits and EPA approves PSD provisions that correct this narrow deficiency within two years after the effective date of

such final action.

3. Minor NSR permit program

As discussed in EPA’s 2011 Pb Guidance, 23 we interpret section 110(a)(2)(C) as requiring SIPs to include a program for the regulation of new and modified minor sources and minor modifications of major sources, herein referred to as “minor NSR.” It also encourages states, in thei r infrastructure SIP submittals, to identify their existing SIP

- approved provisions governing minor NSR that regulate emissions of the relevant pollutant. Given that Nevada’s Infrastructure SIP Submittal was submitted prior to issuance of the guidance, it did not explicitly address minor NSR for the 2008 Pb NAAQS. However, the NDEP portion of the submittal references NDEP’s separate permit program submittal of January 24, 2011, which focused on minor NSR, and noted that “Nevada’s Pb Infrastructure SIP would better address the CAA requirement if NDEP’s permitting program update were approved.” 24 Also, the Clark County portion of the submittal refers to a list of rules that had been submitted separately for

21 See 75 FR 64864 (Octobe r 10, 2010), which set a deadline of July 20, 2012 for SIP revisions to incorporate the final PSD

increme nts for PM 2.5 ( see page 64898). In addition, this rule set requirements for significant impact levels (SILs) and significant monitoring concentrations (SMCs) for PM 2.5

. However, as a result of litigation, on January 22, 2013, the D.C. Circuit Court granted a request from EPA to vacate and remand the SIL provisions of this rule and to vacate the SMC provisions of this rule

. Sierra Club v. EPA, No. 10

- 1413, Decided January 22, 2013, U.S. Court of Appeals for the District o f Columbia Circuit (D.C. Cir. 2013). As such we did not evaluate the SIP

- approved PSD program in Clark County for SILs

and SMCs for purposes of CAA section 110(a)(2)(C) as part of this proposal.

22 Today’s proposal, if finalized, would not trigger an additional FIP obligation with respect to t he PSD requirements regarding condensable PM, as no purpose would be served by triggering duplicative FIP obligations based on the same identified SIP deficiency. Substantively, we anticipate that SIP revisions adequately addressing the requirements regar ding condensable PM, among other PSD program corrections, will be submitted and approved prior to expiration of the 2

- year FIP deadline triggered by our October 18, 2012 limited disapproval of the program ( 77 FR 64039) . Such an approval would also adequat ely address the disapproval of the Clark County portion of Nevada’s Pb Infrastructure Submittal based on this deficiency.

23 Pages 6

- 7.

24 Nevada’s October 12, 2011 submittal, footnote #1.13

incorporation into the Nevada SIP in February 2010, in cluding minor NSR rules under Section 12.1 (“Permit Requirements for Minor Sources”). 25

In 2012, EPA finalized actions on Nevada’s and Clark County’s amended minor NSR rules, and our

actions on those rules have informed our evaluation of the Nevada Infrast ructure SIP Submittal with respect to minor source NSR for the 2008 Pb NAAQS under CAA section 110(a)(2)(C) for those sources subject to NDEP and Clark County jurisdiction, as described further below. With respect to

minor source NSR for sources under the jurisdiction of Washoe County Health District, we have evaluated the Nevada Infrastructure SIP Submittal for compliance with CAA section 110(a)(2)(C) through a review of the long

- standing NSR rules in the Washoe County Health District portion of the

Nevada SIP.

NDEP The minor NSR program in the Nevada SIP for sources under NDEP jurisdiction addresses the former Pb NAAQS, but not the current one. 26 More specifically, NAC 445B.308 (“Prerequisites and conditions for issuance of operating permit: Environmental evaluation; compliance with control strategy; exemption from environmental evaluation”) , paragraph 2, prohibits NDEP from issuing a permit to construct to any stationary source if the source “will prevent the attainment and maintenance of the state

or nati onal ambient air quality standards. For the purposes of this paragraph, only those ambient air quality standards that have been established in NAC 445B.22097 need to be considered ....” NAC 445B.22097 (“Standards of quality for ambient air”), in turn, contai ns a table that lists an ambient air quality standard for Pb of 1.5 μg/m 3 based on a quarterly arithmetic mean for both the Nevada and National standards. However, in 2008 EPA revised the Pb NAAQS to a more stringent level and a different averaging period. 27 In our 2012 proposal on NDEP’s permit program submittal, we found that “the submitted NSR rules do not address the new rolling 3

- month average Pb NAAQS (0.15 μg/m 3 ) and

thus concluded that we cannot now fully approve the submitted NSR rules.” 28

As such, we cannot rely on NDEP’s existing minor NSR program to ensure that new and modified sources not captured by the major NSR permitting programs do not interfere with attainment and maintenance of the 2008 Pb NAAQS. Accordingly, with respect to section 110(a) (2)(C), we propose to
find that the Nev ada SIP does not to meet the minor NSR program requirements for sour ces under

NDEP’s jurisdiction for the 2008 Pb NAAQS.

Clark County The minor NSR program in the Nevada SIP for sources under Clark County jurisdiction addresses Pb specifically but only provides protection against violation of the former Pb NAAQS, not the current

one. 29 More specifically, under Clark County AQR Section 12.1.1(c) and (g), any new Pb source with a potential to emit (PTE) equal to or greater than 0.3 tons per year, or any modification of a source resulting in an increase in the PTE of Pb equal to or greater than 0.6 tons per year, is subject to NSR permitting requirements. Also, Section 12.1.4.1 requires minor NSR permits to incl ude “(c) [e]mission limitations for any source or emission unit that ensure: (1) The ambient air quality standards will be attained or maintained.” As described in the TSD to our July 24, 2012 proposed rule 30 on Clark County’s permit program, “[t] The term ‘ ambient air quality standards’ in subsection 12.1.4.1(c) appears

25 Nevada’s July 23, 2012 submittal, page 5.

26 77 FR 59321, Septembe r 27, 2012.

27 73 FR 66964, November 12, 2008.

28 77 FR 59321 at 5 9325

- 59326, September 27, 2012.

29 77 FR 64039, October 18, 2012.

30 77 FR 43206.14

to be in reference to Clark’s ambient air quality standards in Section 11, which are not entirely consistent with the NAAQS” in that they do not include the 2008 Pb NAAQS. 31 In our October 18, 2012

final rule

, we finalized a limited disapproval of Clark County’s permit program submittal that requires Clark County to revise Section 12.1 to address the requirements of 40 CFR 51.160

- 164 with respect to the 2008 Pb NAAQS. 32

So, as with NDEP, we can not rely on Clark County’s existing minor NSR program to ensure that new and modified sources not captured by the major NSR permitting programs do not interfere with attainment and maintenance of the 2008 Pb NAAQS. Accordingly, with respect to section 110( a)(2)(C),

we propose to find that the Nev ada SIP does not to meet the minor NSR program requirements for

sour ces under Clark County’s jurisdiction for the 2008 Pb NAAQS.

Washoe County Although EPA has taken no action on the minor NSR program in the Nevada SIP for sources under Washoe County Health District jurisdiction in many years, the District’s SIP

- approved minor NSR program adequately addresses the current Pb NAAQS, as explained below. T he SIP

- approved Washoe County AQR 030.010 (“General Sources”) sta tes that the Control Officer shall not issue an Authority to Construct if the relevant documents show, or if the Control Officer determines, “that the source:... (B) [w]ill prevent the attainment or maintenance of State or National Ambient Air Standards.” 33 I n 1983, the Washoe County Health District prepared a Pb SIP and cited AQR 030.010 as requiring the Control Officer to deny any permits to build and /or operate a source, regardless of size, if that source will prevent the attainment or maintenance of any N AAQS. The Health District concluded that since there is a NAAQS associated with Pb then all such Pb

- emitting sources will come under the purview of section 030.010 and will require review and approval prior to construction. EPA approved the 1983 Pb SIP in 1984 at 49 FR 26736 (June 29, 1984).

The Washoe County Health District interprets the reference in Rule 030.010 to “National Ambient Air Standards” as a reference to the current NAAQS, 34 and thus the conclusion drawn by the Health District with respect to the original Pb NAAQS in 1983 continues to apply to the 2008 Pb NAAQS. That is, implementation of Rule 030.010 would prevent construction and operation of new stationary sources that would violate the current Pb NAAQS.

We find the District’s interpretatio n of its own rule to be reasonable, and thus, we can rely on Washoe County’s existing minor NSR program to ensure that new and modified sources not captured by the major NSR permitting programs do not interfere with attainment and maintenance of the 2008 P b

31 “Technical Support Document for EPA’s Notice of Proposed Rulemaking for revisions to the Nevada State Implemen tation Plan, Clark County Department of Air Quality and Environmental Management, New Source Review Permitting Program, Including Minor NSR, NSR and PSD programs,” July 11, 2012. Page 12. Also, while Section 11 was repealed effective April 19, 2011 (per Cl ark County’s “Current Rules & Regulations” webpage: http://www.clarkcountynv.gov/depts/AirQuality/Pages/Rules_CurrentRulesandRegulations.aspx ), it has not been replaced in the Nevada SIP since its approval into the SIP on September 7, 2004 (69 FR 54006).

32 77 FR 64309. Note that in this final rule we concluded that the “ most significant deficiencies that we identified in the submitted NSR rules, as discu ssed in detail in the TSD, are generally as follows: (1) The absence of minor NSR provisions that ensure protection of the 2006 PM 2.5 NAAQS and 2008 Lead (Pb) NAAQS.” Page 64040.

33 Washoe County AQR 030.010 was approved into the SIP on April 14, 1981 (46 F R 21758). The current version of this rule, available under Section 030.000 at http://www.washoecounty.us/health/air/regulations.html , was most recently amended on June 27, 1990. That ame ndment added an additional paragraph (D) to the regulation, but did not change the condition under paragraph (B), as discussed above.

34 Phone conversation between Jeff Wehling, Office of Regional Counsel, EPA Region IX, and Daniel Inouye, Chief of the

Moni toring and Planning Branch, Washoe County Health District, Air Quality Management Division, dated September 13,

2013.15

NAAQS. Accordingly, with respect to section 110(a)(2)(C), we propose to find that the Nev ada SIP meets the minor NSR program requirements for sour ces under Washoe County Health District’s jurisdiction for the 2008 Pb NAAQS.

Consequences of Disapproval for Section 110(a)(2)(C) for Minor NSR The proposed disapprovals for section 110(a)(2)(C) with respect to NDEP and Clark County’s minor NSR programs, if finalized, will not trigger the obligation for EPA to promulgate a FIP. Normally, such disapprovals wou ld trigger FIP obligations under CAA section 110(c)(1). However, in this instance, the FIP obligations have already been triggered by EPA’s 2012 actions on the NSR rules submitted for sources under NDEP and Clark County jurisdiction. In both instances, EPA took final, limited approval/limited disapproval actions, and the limited disapprovals, in part based on the deficiencies in the rules with respect to the 2008 Pb NAAQS, triggered the current FIP obligations. Thus, no purpose would be served by triggering duplicative FIP obligations based on the same identified SIP deficiencies. Substantively, we anticipate that SIP revisions that adequately address the deficiencies identified by EPA in the minor NSR rules for sources under NDEP and Clark County jurisdicti on with respect to the 2008 Pb NAAQS to be submitted and approved prior to expiration of the 2

- year FIP deadlines triggered by our 2012 limited disapproval actions. Such approvals would also serve to adequately address the disapproval of Nevada’s Pb Infras tructure SIP with respect to the minor NSR requirements under CAA section 110(a)(2)(C) for the 2008 Pb NAAQS for Pb emitting sources under NDEP and Clark County jurisdiction.

4. Conclusion

With respect to the requirement in section 110(a)(2)(C) to include a program to provide for the enforcement of control measures, EPA is proposing to approve Nevada’s Pb Infrastructure Submittal

based on our conclusion that the state ’s general enforcement authorities provide an adequate

infrastructure for SIP enforcement st atewide.

With respect to the requirement in section 110(a)(2)(C) to include a preconstruction review program for major sources (i.e., PSD) under part C of title I, EPA is proposing to disapprove Nevada’s submittal

since the NDEP and Washoe County portions of the Nevada SIP lack a SIP

- approved PSD program and since the Clark County’s SIP

- approved PSD provisions are deficient with respect to PM condensables

and PM 2.5 increments.

With respect to the requirement in section 110(a)(2)(C) to include a preconstru ction review program for minor sources (i.e., minor NSR) for the 2008 Pb NAAQS, EPA is proposing to disapprove the NDEP and Clark County portions, and approve the Washoe County portion, of Nevada’s Pb Infrastructure

Submittal.



### CAA Section 110(a)(2)(D)

– In terstate transport

Section 110(a)(2)(D) of the Act requires that each SIP : contain adequate provisions

— (i) prohibiting, consistent with the provisions of this title, any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will

— (I) contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any such national primary or secondary ambient air quality standard, or16

(II) interfere with measures required to be included in the applicable implementation plan for any other State under part C to prevent significant deterioration of air quality or to protect visibility, and (ii) insuring compliance with the applicable requirements o f sections 126 and 115 (relating to interstate and international pollution abatement).

Section 126(a) of the Act requires notification to affected, nearby states of proposed new or modified major sources. Sections 126(b) and (c) pertain to petitions by af fected states to EPA regarding sources violating the “interstate transport” provisions of CAA section 110(a)(2)(D)(i). Section 115 of the Act pertains to international transport of air pollution.

Nevada’s response to this requirement
The NDEP portion of N evada’s Pb Infrastructure Submittal asserts that there are no sources emitting greater than 0.5 tpy of Pb within two miles of the state’s border. It reiterates that NDEP has full delegation of the federal PSD program, notes that Nevada AQR Article 13 (“Gen eral Provisions for the Review of New Sources”) requires an environmental evaluation before a registration certificate is issued, and states that Article 13 would be replaced by three NAC regulations submitted by NDEP to EPA on January 24, 2011. The submit tal states that it does not address visibility impacts as those are addressed via the federal regional haze program and that, at the time the State was developing the Nevada Pb Infrastructure Submittal, EPA had proposed approval of Nevada’s November 18, 20 09 Regional Haze SIP submittal (Nevada’s Regional Haze SIP). In addition, NDEP identifies several permit

- related NAC regulations that require sources to notify neighbors of air pollution impacts, as required by CAA section 126.

The Clark County portion of the submittal similarly asserts that there are no sources in the County emitting 0.5 or more tpy of Pb and refers to EPA’s 2011 Pb Guidance, which states that Pb does not travel as far or go through the same atmospheric chemical transformation as ozone or PM 2.5 and that Pb concentrations decrease sharply the larger the distance from the source. This portion of the submittal also states that Sections 12.2 (“Permit Requirements for Major Sources in Attainment Areas”) and 12.3 (“Permit Requirements for Major Sources in Nonattainment Areas”) of Clark County’s permit program require an assessment of visibility impairment, and references EPA’s 2011 Pb Guidance to support the County’s general conclusion that Pb

- related visibility impacts are insignificant.

The Wa shoe County portion of the submittal states that there are no sources in the County emitting 0.5 or more tpy of Pb and that Washoe County AQMD has full delegation of the federal PSD program. It does not make any statement with respect to visibility.

EPA’s evaluation
The interstate transport requirements of CAA section 110(a)(2)(D) are typically addressed in several subparts, or “prongs.” We address each of four prongs under section 110(a)(2)(D)(i), and the requirements of section 110(a)(2)(D)(ii), successiv ely below. Our evaluation of Nevada’s Pb Infrastructure Submittal is guided primarily by EPA’s 2011 Pb Guidance.

Prongs 1 and 2 CAA section 110(a)(2)(D)(i)(I) requires SIPs to prohibit emissions that will significantly contribute to

nonattainment of the N AAQS in other states (i.e., “prong 1”) or that will interfere with maintenance of17

the NAAQS in other states (i.e., “prong 2”). 35 As referenced in Nevada’s Pb Infrastructure Submittal, EPA’s 2011 Pb Guidance noted that the physical properties of Pb limit its potential transport relative to other air pollutants like ozone and PM 2.5

. 36 As such, while it may be possible for a source in a state to emit Pb in a location and in quantities that may contribute significantly to nonattainment in, or interfere

with maint enance by, any other state, EPA anticipates that this would be a rare situation, for example, where large sources are in close proximity to state boundaries. See EPA’s 2011 Pb Guidance at 8.

We have reviewed the 2008 NEI for the State of Nevada and verified the assertions in Nevada’s Pb Infrastructure Submittal that no sources emitting Pb in amounts greater than 0.5 tpy are in close proximity to the state’s borders. 37 In fact, the two largest sources of Pb in the state

– North Las Vegas Airport (0.58 tpy) and McCarran International Airport (0.27 tpy)

– are both in Clark County and are 20 or more miles from the nearest state border (i.e., Arizona) and 200 or more miles from the nearest Pb nonattainment area (part of Los Angeles County, California). As a result, the State submittal provides a reasonable basis to conclude that sources in Nevada that emit Pb do not contribute significantly to nonattainment in, or interfere with maintenance of the Pb NAAQS in any other state. Therefore, we are proposing to a pprove the section 110(a)(2)(D)(i)(I) portion of Nevada’s Pb Infrastructure Submi ttal as meeting the requirements of CAA section 110(a)(2)(D)(i)(I) for the 2008 Pb NAAQS statewide.

Prong 3 CAA section 110(a)(2)(D)(i)(II) requires SIPs to prohibit emissio ns that will interfere with other states’ measures to prevent significant deterioration of air quality (i.e., “prong 3”). This requirement may be satisfied by SIP

- approved PSD programs that are current with the “structural” PSD requirements for all regula ted NSR pollutants and GHGs and nonattainment NSR programs covering those NAAQS for

which the State contains nonattainment areas

. 38

For the NDEP and Washoe County portions of the Nevada SIP, a s discussed in Nevada’s Pb

Infrastructure Submittal and our eval uation for CAA section 110(a)(2)(C) above, EPA has promulgated PSD FIPs and delegated the implementation of these PSD FIPs to NDEP and Washoe County AQMD.

While NDEP references its SIP

- approved regulations for new and modified sources of air pollution [e.g

., Nevada AQR Article 13 (“General Provisions for the Review of New Sources”), NAC 445B.310 and 445B.311 (regarding environmental evaluation), etc], new and modified major sources are subject to the delegated PSD FIPs. Furthermore, NDEP does not make the c ase for why these other provisions alone are adequate to prohibit emissions that will interfere with other states’ PSD measures. Therefore, we propose to disapprove the NDEP and Washoe County portions of N evada’s Pb Infrastructure Submittal

on the basis th at the Nevada SIP does not contain adequate provisions to meet the PSD requirement of section 110(a)(2)(D)(i)(II) for the 2008 Pb NAAQS for sources under NDEP’s or Washoe County’s jurisdiction.

35 I n accordance with the decision of the U.S. Court of Appeals for the District of Columbia, EPA at this time is not treating

the section 110(a)(2)(D)(i)(I) portion of Nevada’s Pb Infrastructure Submittal as a required SIP submission. See EME Homer City Generation, L.P. v. EPA, 696 F .3d 7 (D.C. Cir. 2012), cert. granted , 2013 U.S. Lexis 4801 (2013). On June 24, 2013, the Supreme Court gra nted the petitions of the United States and others and agreed to review th e merits of the D.C. Circuit

decision in EME Homer City during the Court’s 2013 term

. Regardless of whether a particular SIP submission is considered “required,” however, section 110(k)(2) of the CAA requires EPA to act on the submission.

36 EPA 2011 Pb Guidance, page 8.

37 See the file entitled “2013

- 08 Nevada Pb Source Data from 2008 NEI Database.xlsx” in the docket for this proposal.

38 S ee M emorandum from William T. Harnett, Director, OAQPS/AQPD, “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24

- Hour Fine Particle (PM 2.5 ) National Ambient Air Quality Standards (NAAQS),” September 25, 2009.18

We note that Washoe County is designated and classified as “s erious” nonattainment for the PM

- 10 NAAQS (see 40 CFR 81.329). 39 Given the PSD

- related deficiencies that necessitate disapproval of the Washoe County portion of Nevada’s Pb Infrastructure Su bmittal with respect to the “PSD prong,” we

need not discuss Washo e County’s nonattainment NSR program

.

For Clark County, as discussed above in connection with section 110(a)(2)(C), the SIP

- approved PSD program in Clark County contains certain “structural” elements, but is missing others for PM 2.5

. Because

Clark County’s SIP

- approved PSD program does not address the PM condensable and PM 2.5 increment requirements under part C of title I of the CAA and 40 CFR 51.166 (b)(49) and 40 CFR 51. 166 (c )

, respectively, we propose to disapprove the Clark County portion of Neva da’s Pb Infrastructure

Submi ttal on the basis that the Nevada SIP does not meet the PSD

- related requirements of CAA section 110(a)(2)(D)(i)(II) in Clark County. We note that Clark County is designated and classified as “serious”

nonattainment for PM

- 10, 40 b ut given the PSD

- related deficiencies that neces sitate disapproval of the

submittal with respect to the “PSD prong,” we need not discuss Clark County’s nonattainment NSR

program

.

A s a result of EPA’s October 18, 2012 limited disapproval of Clark County’s PSD program with respect to the requirements regarding condensable particular matter (77 FR 64039), EPA is already obligated to promulgate a FIP to address this deficiency no later than two years from the effective date of that action,
i.e., by November 1 9, 2014. This FIP obligation remains unchanged. 41 Since that time, the July 20, 2012 deadline for submitting adopted PM 2.5 increments consistent with EPA’s requirements in 40 CFR

51. 166 (c) has passed ( see 75 FR 64864 at 64898), and Clark County’s PSD progr am is now deficient with respect to this requirement as well. Thus, we propose to disapprove the Clark County portion of Nevada’s Pb Infrastructure Submittal on the basis of these two PSD program deficiencies. If finalized, this proposed disapproval would require EPA to promulgate a narrow FIP establishing PM 2.5 increments consistent with the requirements of 40 CFR 51.166(c) in Clark County, unless Nevada submits and EPA approves PSD provisions that correct this narrow deficiency within two years after the effective date of

such final action.

Prong 4 CAA section 110(a)(2)(D)(i)(II) also requires SIPs to prohibit emissions that will interfere with other states’ measures to protect visibility (i.e., “prong 4”). In general, this requirement may be satisfied by a

SIP

- approved regional haze program. For Pb in particular, EPA’s 2011 Pb Guidance states that Pb generally comprises a small fraction of coarse and fine PM (both of which may affect visibility) and that EPA anticipated that Pb emissions would contribute only negligibly to visibility impairment at C lass I

areas. 42

Nevada’s Pb Infrastructure SIP referred to the regional haze program and EPA’s proposed approval of Nevada’s Regional Haze SIP 43 and to the provisions in Clark County’s permit program that require assessment of visibility impairment as part of an environmental review of a new or modified major source of air pollution. In the time that has passed since Nevada’s submittal, EPA finalized approval of

39 PM

- 10 is the only effective NAAQS for which Nevada c ontains areas currently designated as nonattainment. See 40 CFR 81.329 (identifying Clark County (Las Vegas area) and Washoe County (Reno area) as “serious” nonattainment for PM

- 10). EPA has, however, determined that both of these areas have attained the PM

- 10 NAAQS. See 75 FR 45485 (August 3, 2010) (determination of attainment for PM

- 10 for Las Vegas Valley nonattainment area) and 76 FR 21807 (April 19, 2011) (determination of attainment for PM

- 10 for Washoe County nonattainment area).

40 Ibid

. 41 See n. 22, supra

. 42 EPA’s 2011 Pb Guidance, page 9.

43 76 FR 36450, June 22, 2011.19

Nevada’s Regional Haze SIP, 44 with the exception of Nevada’s Best Available Retrofit Technology (B ART) determination for the emission of nitrogen oxides (NO

x ) at Reid Gardner Generating Station, for which we finalized a partial approval and partial disapproval. 45 In the latter final rule, we also promulgated a federal implementation plan to establish a BART emission limit for NO

x at Unit 3 and establish a compliance method for all three units of the Reid Gardner Generating Station. Given the narrow nature of our disapproval and FIP (i.e., NO

x limits at one power plant in the state), for purposes

of the 2 008 Pb NAAQS, we believe the Nevada Regional Haze SIP contains adequate provisions to prohibit Pb emissions that will interfere with other states’ measures to protect visibility at Class I areas

in those other states. Accordingly, we propose to approve Nev ada ’s Pb Infrastructure Submittal on the

basis that it meets the visibility “prong” of CAA secti on 110(a)(2)(D)(i)(II) for the 2008 Pb NAAQS for all three jurisdictions

.

CAA Section 110(a)(2)(D)(ii)

1. Section 126 (“Interstate pollution abatement”)

With re spect to the requirement in CAA section 110(a)(2)(D)(ii) regarding compliance with the applicable requirements of section 126 relating to interstate pollution abatement, we note that the requirements of section 126(b) and (c), which pertain to petitions by affected states to EPA regarding sources violating the “interstate transport” provisions of CAA section 110(a)(2)(D)(i), do not apply to our action because there are no such pending petitions relating to Nevada. We thus evaluate Nevada’s

Pb Infrastructure Submittals only for purposes of compliance with section 126(a).

EPA is proposing to partially approve and partially disapprove Nevada’s Pb Infrastructure SIP

Submittals for purposes of meeting the requirements of CAA section 126(a) regarding notification to affected, nearby states of major proposed new or modified sources. Specifically, the SIP

- approved Clark County AQR Section 12. 2 includes a require ment for the permitt ing agency to send a copy of the required public notice to EPA and to “ [a] ny state, Federal Land Manager, and Indian governing body whose lands may be affected by emissions from the source or modification.” See CCR Section

12

. 2.16.2(d). This requirement fo r notice to nearby states are consistent with EPA’s requirements for PSD programs in 40 CFR 51.166(q)(2)(iv).

NDEP and Washoe County AQMD do not have SIP

- approved PSD programs. Thus, the Nevada SIP remains deficient with respect to the PSD requirements in part C, title I of the Act and with respect to the requirement in CAA section 126(a) regarding notification to affected, nearby states of major proposed new or modified sources in these two areas. These deficiencies are, however, adequately

addressed with respect to all regulated NSR pollutants in both areas by the Federal PSD program in 40 CFR 52.21 and no further action is required.

F or these reasons, we propose to approve the Clark County portion, and to disapprove the NDEP and Washoe County’s porti ons, of Nevada’s Pb Infrastructure Submittal with respect to the requirement in CAA section 110(a)(2)(D)(ii) regarding compliance with the applicable requirements of sections 126 relating to interstate pollution abatement.

2. Section 115 (“International air pollution”)

44 77 FR 17334, March 26, 2012.

45 77 FR 50936, August 23, 2012.20

CAA section 115 authorizes the Administrator to require a state to revise its SIP when certain criteria

are met and the Administrator has reason to believe that any air pollutant emitted in the United States causes or contributes to air pollu tion which may reasonably be anticipated to endanger public health or welfare in a foreign country. The Administrator may do so by giving formal notification to the Governor of the State in which the emissions originate. Because no such formal notification has been made with respect to emissions originating in Nevada, EPA has no reason to approve or disapprove any existing state rules with regard to CAA section 115. EPA thus concludes that the existing SIP is sufficient to satisfy the requirement in CAA sec tion 110(a)(2)(D)(ii) regarding compliance with the applicable requirem ents of section 115

.

Conclusion

EPA is proposing to (1) approve Nevada’s Pb Infrastructure Submittal as satisfying the requirements concerning interstate transport in CAA section 110(a)(2)(D)(i)(I); (2) disapprove Nevada’s Pb

Infrastructure Submittal with respect to the “PSD prong” of section 110(a)(2)(D)(i)(II); (3) approve

Nevada’s Pb Infrastructure Su bmittal as satisfying the visibility “prong” of secti on 110(a)(2)(D)(i)(II) ; and (4) partially approve and partially disapprove Nevada’s Pb Infrastructure Submittal with respect to the requirement in CAA section 110(a)(2)(D)(ii) to ensure compliance with t he app licable requirements

of section 126 relating to interstate pollution abatement.



### CAA Section 110(a)(2)(E)

– Adequate resources and authority, conflict of interest, and oversight of local governments and regional agencies

Section 110(a)(2)(E) requires SIPs to : provide (i) necessary assurances that the State (or, except where the Administrator deems inappropriate, the general purpose local government or governments, or a regional agency designated by the State or general purpose local governments for suc h purpose) will have adequate personnel, funding, and authority under State (and, as appropriate, local) law to carry out such implementation plan (and is not prohibited by any provision of Federal or State law from carrying out such implementation plan or portion thereof), (ii) requirements that the State comply with the requirements respecting State boards under section 128, and (iii) necessary assurances that, where the State has relied on a local or regional government, agency, or instrumentality for th e implementation of any plan provision, the State has responsibility for ensuring adequate implementation of such plan provision.

Section 128 requires SIPs to : contain requirements that (1) any board or body which approves permits or enforcement orders

un der the CAA shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits or enforcement orders under the CAA, and (2) any potential conflicts of intere st by members of such board or body or the head of an executive agency with similar powers be adequately disclosed.

Related EPA Regulations Subpart L (“Legal Authority”) of 40 CFR Part 51 specifies SIP requirements related to CAA section 110(a)(2)(E)(i) a nd (iii). Subpart L includes three rules: 40 CFR 51.230 (“Requirements for all plans”), 51.231 (“Identification of legal authority”), and 51.232 (“Assignment of legal authority to local agencies”).

Section 51.280 (“Resources”) of Subpart O (“Miscellaneous Plan Content Requirements”) also relates to CAA section 110(a)(2)(E)(i) and it specifies that, with respect to resources, a SIP must include a21

description of the resources available to the state and local agencies at the date of submission of the plan

and of any additional resources needed to carry out the plan during the five

- year period following its submission. The description must include projections of the extent to which resources will be acquired at

1

- , 3

- , and 5

- year intervals.

Section 51.240 (“Ge neral Pl an Requirements”) states that “[e] ach State implementation plan must identify organizations, by official title, that will participate in developing, implementing, and enforcing the plan and the responsibilities of such organizations. The plan shall include any related agreements or memoranda of understanding among the organizations.”

Nevada’s response to this requirement
Nevada’s Pb Infrastructure Submittal cites various state statutes that provide authority to the relevant

state and local entities to implement the CAA. For instance: NRS 445B.205 designates the DCNR as the air pollution control agency for Nevada; NAC 445B.053 assigns NDEP the responsibility of managing air quality planning and air pollution control programs; NRS 445B.500 requires cou nty entities (i.e., Clark County BCC and Washoe County Health District) in counties with a population greater than 100,000 to establish and administer an air pollution control program; and NRS 445B.520 grants the SEC the authority to direct the DCNR to adm inister an adequate air pollution control program if such county entities fail to establish or administer such an air pollution control program.

Regarding personnel and funding, Nevada’s August 30, 2012 submittal updated the prior submittals,

addressed th e provisions governing such resources for the State of Nevada, Clark County, and Washoe County, and requested replacement of Section 12 (“Resources”) of Nevada’s SIP approved in 1972. See Attachment A of Nevada’s August 30, 2012 submittal. That attachment is the primary basis for our evaluation of Nevada’s personnel and funding, while our review of state statutes and other provisions in the Nevada SIP is the primary basis for our evaluation of Nevada’s legal authority.

Lastly, the August 30, 2012 submittal provided an analysis and a number of state statutes regarding how the state addresses conflict of interest, as per the requirements of CAA section 128. We understand those provisions to apply statewide and that local conflict of interest provisions, such as Clark County Code Chapter 2.42, as cited in Nevada’s July 23, 2012 submittal, function alongside the requirements of the

state statutes.

EPA’s evaluation
Our analysis of Nevada’s Pb Infrastructure Submittal largely reiterates the evaluation embodied in the technical support documents (TSDs) to our October 23, 2012 final rule 46 because the August 30, 2012 submittal applied equally to the state’s prior ozone and PM 2.5 infrastructure SIP submittals as to the state’s October 12, 2011 Pb infrastructure SIP sub mittal. The August 30, 2012 submittal also requested that we “apply any and all provisions that may provide support from this submittal to future USEPA actions on CAA [section] 110(a)(2) requirements for all NAAQS pollutants....”

Legal Authority The Legal Authority section of the Nevada SIP consists of two letters from the Nevada Attorney General: one dated December 21, 1971, approved by EPA at 37 FR 10842 (May 31, 1972), and another dated November 17, 1972, approved by EPA at 38 FR 12702 (May 14, 1973); as well as a number of statutory provisions, approved by EPA through a number of rulemakings over the years. The statutory

46 See our proposed (August 3, 2012, 77 FR 46361) and final rules (October 23, 2012, 77 FR 64737) on Nevada’s

infrast ructure SIPs for the 1997 ozone, 1997 PM 2.5 , and 2006 PM 2.5 NAAQS.22

references in the 1971 Attorney General’s Letter have been superseded by changes made in the laws by the Nevada Legislature. NDEP has submitted more recent versions of the relevant statutory provisions and EPA has approved them into the Nevada SIP. The following table matches the required authorities with the statutory provisions in the applicable Nevada SIP.

Authority to: Pr ovided in the following sections of the NRS to the State Environmental Commission or the State Department of

Conservation and Natural Resource: 47

Adopt emission standards and limitations and any other measures necessary for

attainment and maintenance of na tional

standards.  445B.210 (“Powers of Commission”)(71 FR 51766, August 31, 2006); and

 445B.230 (“Powers and duties of Department”) (72 FR 11, January 3, 2007). Enforce applicable laws, regulations, and standards, and seek injunctive relief.  445B.210 (“Powers of Commission”)(71 FR 51766, August 31, 2006);

 445B.230 (“Powers and duties of Department”) (72 FR 11, January 3, 2007);

 445B.450 (“Notice and order by Director; hearing; alternative procedures”)(72 FR 11, January 3, 2007);

 445B.460 (“Injunctive r elief”)(72 FR 11, January 3, 2007);

and

 455B.640 (“Levy and disposition of administrative fines; additional remedies available; penalty”)(72 FR 11, January 3, 2007). Abate pollutant emissions on an emergency basis to prevent substantial endangerment to

th e health of persons, i.e., authority comparable to that available to the EPA

Administrator under CAA section 303.  445B.560 (“Plan or procedure for emergency”)(71 FR 51766, August 31, 2006).

Prevent construction, modification, or operation of a facility, b uilding, structure, or installation, or combination thereof, which directly or indirectly results or may result in emission of any air pollutant at any location which will prevent the attainment or

maintenance of a national standard.  445B.300 (“Operating permit for source of air contaminant; notice and approval of proposed construction; administrative fees; failure of Commission or Department to act”)(71 FR 51766, August 31, 2006).

Obtain information necessary to determine whether air pollution sources ar e in compliance with applicable laws, regulations, and standards, including authority to require recordkeeping and to make inspections and conduct tests of air pollution sources.  445B.225 (“Power of Commission to require testing of sources”)(71 FR 51766, A ugust 31, 2006);

 445B.230 (“Powers and duties of Department”) (72 FR 11, January 3, 2007);

 445B.240 (“Power of representatives of Department to enter and inspect premises”)(72 FR 11, January 3, 2007);

 445B.245 (“Power of Department to perform or require te st of emissions from stacks”)(71 FR 51766, August 31, 2006); and

 445B.580 (“Officer of Department may inspect or search premises; search warrant”)(72 FR 11, January 3, 2007). Require owners or operators of stationary sources to install, maintain and use e mission monitoring devices and to make periodic

reports to the state on the nature and amounts of emissions from such stationary  445B.225 (“Power of Commission to require testing of sources”)(71 FR 51766, August 31, 2006);

 445B.245 (“Power of Department to perform or require test of emissions from stacks”)(71 FR 51766, August 31, 2006); and

 445B.570 (“Confidentiality and use of information obtained

47 Within the D CNR , NDEP has responsibility to manage the air quality planning and air pollution control programs for the

State of Nevada. The Director of the D CNR has selected the NDEP Admi nistrator as the official designee for the purposes of the CAA, including, but not limited to, adoption, revision and submittal of state implementation plans. See letter from Allen Biaggi, Director, Nevada Department of Conservation and Natural Resources, to Wayne Nastri, Regional Administrator, EPA Region 9, dated May 30, 2007.23

sources; also authority for the state to make such data available to the public as reported and as correlated with any applicab le

emission standards or limitations. by Department; penalty”) (72 FR 11, January 3, 2007).

As shown in the table above, State law provides for the necessary legal authority to State agencies to comply with the related requirements of CAA section 110(a)(2)(E)(i) and 40 CFR 51.230 and 51.231. However, as authorized under the CAA, Nevada State law also provides for local air pollution control districts to carry out a portion of the SIP, and we must evaluate the SIP to ensure that the SIP provides the necessary legal authority to the local agencies to meet the applicable CAA requirements.

Under NRS section 445B.500 (“Establishment and administration of program; contents of program; designation of air pollution control agency of county for purposes of federal act; powers and duties of local air pollution control board; notice of public hearings; delegation of authority to determine violations and levy administrative penalties; cities and smaller counties; regulation of certain electric

p lants prohibited”), 48 the district board of health, county board of health, or board of county commissioners in each county whose population is 100,000 or more must establish a program for the control of air pollution and administer the program within its jurisdiction unless s uperseded. The two counties in Nevada to which this statutory provision applies are Clark County and Washoe County.

In Clark County, the Clark County BCC is responsible for the program called for in NRS section 445B.500. With respect to air pollution con trol, the Clark County BCC acts through the Clark County DAQ. In Washoe County, the District Board of Health of the Washoe County Health District is responsible for the air pollution control program called for in State law. The Washoe County DBOH acts

thro ugh the Washoe County AQMD within the District Health Department.

Under NRS section 445B.500(1)(b), the local programs must include, without limitation, standards for the control of emissions and emergency procedures established by ordinance or local reg ulation which are equivalent to or stricter than those established by statute or state regulations and must provide for adequate administration, enforcement, financing and staff. Moreover, under NRS section 445B.500(1)(c), the applicable district board of health, county board of health or board of county commissioners is designated as the air pollution control agency of the county for the purposes of state law and the Clean Air Act insofar as it pertains to local programs, and that agency is authorized to t ake all action necessary to secure for the county the benefits of the Clean Air Act. Lastly, under NRS section 445B.500(1)(d), all of the powers and responsibilities provided for in NRS sections 445B.210, 445B.240 to 445B.470, inclusive, 445B.560, 445B.570 , 445B.580, and 445B.640 are binding upon and inure to the benefit of local air pollution control authorities within their jurisdiction. Thus, the same types of authorities granted under State law to the SEC and the DCNR are extended to the authorized loca l air pollution control agencies in the State of Nevada. Thus, the SIP meets the related requirements under CAA section 110(a)(2)(E)(i) and 40 CFR 51.232(b)(1).

With respect to local air pollution control programs, NRS section 445B.520 (“Commission may

es tablish or supersede county program”), 49 the SEC is authorized to administer an adequate air pollution control program within the county and may supersede any existing county air pollution control program where the SEC finds that such a program has become i nadequate and if the county program fails to take corrective measures identified by the commission. As such, the applicable Nevada SIP provides the

necessary assurances that, where the state has relied on local governments or regional agencies, the state

48 71 FR 51766, August 31, 2006

. 49 71 FR 51766, August 31, 2006

.24

h as responsibility for ensuring adequate implementation of the SIP as required under CAA section 110(a)(2)(E)(iii) and 40 CFR 51.232(b)(2).

Therefore, based on the evaluation provided above, we can conclude that the applicable Nevada SIP provides for the necessary legal authority to carry out the SIP and thus EPA is proposing to approve the

Nevada Infrastructure Submittal as meet ing the relate d requirements under CAA section 110(a)(2)(E)(i) and (iii), and 40 CFR 51.230 through 40 CFR 51.232. None of the statutory provisions discussed above is limited to specific pollutants and thus would apply for the purposes of the 2008 Pb NAAQS.

Personnel and Funding The applicable Nevada SIP includes a sec tion titled “Resources” (i.e., S ection 12), which was submitted as part of the state’s August 30, 2012 submittal and approved by EPA on October 23, 2012. 50 Section 12

of that submittal identifies the entit ies throughout the state that are responsible for air pollution control programs and describes the funding mechanisms, funding level, and personnel for NDEP, Clark County DAQ, and Washoe County AQMD as the primary agencies for implementing such air polluti on control programs. At the state level, Section 12 describes various funding mechanisms established by the state, including the state’s “Account for the Management of Air Quality...,” and state’s Air Pollution Control Account, and those provided by U.S. E PA, including grants pursuant to CAA sections 103 and 105. It also describes the roles of NDEP’s two bureaus, the Bureau of Air Quality Planning and the Bureau of Air Pollution Control, and the typical and current funding levels and current personnel leve l for NDEP.

For Clark County and Washoe County, Section 12 reaffirms the legal authorities of each county, as discussed above in the subsection entitled “Legal Authority,” and describes the funding mechanisms in use by each county including fees charged f or permits and technical services, federal grants under CAA sections 103 and 105, state grants from the Pollution Control Account, transportation funds (either through regional transportation commission taxes or state Department of Motor Vehicle fees), and funds from the federal Congestion Mitigation and Air Quality Program (for Clark County) or funds from the three local entities participating in the “Interlocal Agreement Concerning the Washoe County District Health Department.”

Furthermore, Section 12 as serts that NDEP, Clark County DAQ, and Washoe County AQMD have been implementing programs to meet the CAA SIP requirements for 40 years and that they have “adequate funding and personnel... to meet the needs of these programs.” Lastly, with respect to projec tions of resource needs, it asserts that “[o]ver the next five years, current funding and personnel levels are expected to remain stable via the funding mechanisms described.”

We conclude that such description provides the necessary assurances of adequate funding and personnel with respect to the 2008 Pb NAAQS for all three jurisdictions in Nevada (NDEP, Clark County, and Washoe County) and thus EPA is proposing to approve the Nevada Infrastructure Submittal as meet ing

the resources

- related requirements of CAA section 110(a)(2)(E)(i) and 40 CFR 51.280.

Conflicts of Interest CAA section 110(a)(2)(E)(ii) refers to the requirements of CAA section 128, which addresses potential conflicts of interest concerning final decisions by boards or the heads of executi ve agencies on permits and enforcement orders issued under air pollution control programs developed to meet CAA requirements. Nevada’s August 30, 2012 submittal provided an analysis and a number of state statutes regarding how the state addresses conflict of interest, as per the requirements of CAA section 128. As

50 77 FR 64737

.25

part of our rulemaking on the state’s infrastructure SIP submittals for the 1997 ozone, 1997 PM 2.5 , and

2006 PM 2.5 NAAQS, we included our evaluation of the state’s provisions for conflict of inter est (“Section 128 TSD”) and concluded that they meet the requirements of CAA sections 110(a)(2)(E)(ii) and 128 for all three jurisdictions in the state (i.e., the state level, Clark County, and Washoe County). 51
That rulemaking approved a number of state st atues into the Nevada SIP, where they remain.

None of the statutory provisions discussed in our Section 128 TSD is limited to specific pollutants and thus would apply for the purposes of the 2008 Pb NAAQS. Furthermore, none of the provisions of Clark

Cou nty Code Chapter 2.42, as cited in Nevada’s July 23, 2012 submittal, does anything to undermine the applicability of the SIP

- approved state statutes to those entities in Clark County that approve permits or enforcement orders. As such, w e incorporate our S ection 128 TSD by reference and herein conclude

that the same SIP

- approved state statutes meet the CAA sections 110(a)(2)(E) (ii) and 128 conflict of interest requirements for all NAAQS, including the 2008 Pb NAAQS.

We note, however, one correction to the applicability discussed in that TSD, consistent with our response to comments in our October 23, 2012 final rule. 52 The Control Officer in Washoe County is the District Health Officer of the Washoe County Health District pursuant to Washoe County AQR 010.04 2, rather than the Director of Washoe County AQMD, as stated in our Section 128 TSD. Instead, the Director and the Permits and Compliance Branch Chief of the Washoe County AQMD are designated agents or representatives of the District Health Officer, pursua nt to Washoe County AQR 020.020. Each of these roles is subject to adequate conflict of interest requirements for purposes of CAA sections 110(a)(2)(E)(ii) and 128.

Conclusion None of the state or local laws cited above is pollutant specific, and thus, to the extent we find that they meet the requirements of CAA section 110(a)(2)(E) and the applicable EPA regulations, they do so for the 2008 Pb NAAQS. Thus, based on our review o f the applicable Nevada SIP and Nevada’s Pb Infrastructure Submittal, EPA is proposing to approve Nevada’s Pb Infrastructure Submittal as meet ing the requirements of CAA section 110(a)(2)(E) for the entire state

.



### CAA Section 110(a)(2)(F)

– Stationary sour ce monitoring and reporting

CAA section 110(a)(2)(F) requires : as may be prescribed by the Administrator

— (i) the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and emissions

- related data from such sources, and (iii) correlation of such reports by the State agency with any emission limitations or standards established pursuant to this CAA, which reports shall be available at reasonable times for public inspection.

The SIP must provide citations to regulations with source monitoring, recordkeeping, and r eporting requirements

. For federal regulations on stat ionary source monitoring, see 40 CFR part 51, subpart A (“Air Emissions Reporting Requirements”) and subpart K (“Source Surveillance”).

51 See “ EPA Evaluation of Nevada Provisions for Section 110(a)(2)(E)(ii)/Section 128 ,” July 2012, in the docket for this proposal.

52 77 FR 64737 at 64741, Comment #7.26

NDEP’s response to this requirement
Nevada’s Pb Infrastructure Submittal stated that the NDEP has a system for monitoring stationary source emissions and for submitting periodic emission reports. Several SIP

- approved NAC regulations are cited in support, including NAC 445B.256 thru 445B.265, which are all monitoring system requirements. A number of regulations rela ted to operating permits are also cited that :

 authorize the Director of the DCNR to include monitoring requirements on stationary source permits prior to and after construc tion [e.g., NAC 445B.308(7)(a)],

 require sources to retain records and make them ava ilable on request [e.g., NAC 445B.315(3)],

 authorize compliance testing and sampling (e.g., NAC 445B.252), which results in compliance inspection reports that correlate reported emissions to the emission limitations in the ope rating permit,

 contain monitor ing, testing, and reporting requirements (e.g., NAC 445B.3368 and 445B.346), which satisfy the correlation requirement of CAA section 110(a)(2)(F)(iii); etc.

It also indicates that the state submits data annually to the National Emission Inventory, which is available for public inspection, and that monitored data is shared publicly in NDEP’s webpage for the Nevada Air Quality Trend Report. 53

The Clark County portion of Nevada’s Pb Infrastructure Submittal states that its regulations for permitting (i.e., A QR Section s 12 .1, 12.2, 12.3, 12.4, which have been approved into the Nevada SIP, and Sections 12.9, 12.10, and 12.11 ) and excess emissions due to malfunctions (i.e., AQR Section 25) provide authority for the installation and maintenance of emission sampling and testing facilities . It also states that emissions data is submitted according to the Air Emissions Reporting Rule (AERR), except

for confidential information in accordance wit h local regulations (i.e., AQR Section 12.6) and state law (i.e., NRS 445B.570).

The Washoe County portion of the submittal cites a provision (i.e., Washoe County AQR 020.005) that authorize the Control Officer to enforce SIP measures, including specific regulations for stationary source monitoring and reporting (e.g., Washoe County AQR 030.210 and 030.250) as well as local

- only provisions for sampling, testing, and record keeping.

EPA’s evaluation
Our analysis of Nevada’s Pb Infrastructure Submittal large ly reiterates the evaluation embodied in the Overarching TSD to our October 23, 2012 final rule 54 because the provisions in the Nevada SIP and those cited in Nevada’s Pb Infrastructure Submittal generally apply equally to the state and counties’

ozone and P M 2.5 air quality management and control programs as to their Pb air quality management and control programs.

NDEP EPA reviewed the requirements in CAA section 110(a)(2)(F), Nevada’s Pb Infrastructure Submittal, and the applicable SIP, 55 and determined that NDEP requirements (i.e., NAC 445B.252, 445B.256 through

53 As visited on September 4, 2013, the Nevada Air Quality Trend Report presented data for the years 2000

- 2010 and noted that Pb monitoring was not required in any of Nevada’s 15 rural counti es (i.e., all but Clark County) and that over the period of the report there was a 61% reduction in the national Pb average, based on 92 monitoring sites. Page 10.

54 See our proposed (August 3, 2012, 77 FR 46361) and final rules (October 23, 2012, 77 FR 64 737) on Nevada’s
infrastructure SIPs for the 1997 ozone, 1997 PM 2.5 , and 2006 PM 2.5 NAAQS.

55 The Nevada SIP includes NAC 445.694 (“Emission discharge information”) to address the correlation requirement in CAA section 110(a)(F)(iii) , but the SEC repealed N AC 445.694 and did not submit a replacement for inclusion in the SIP. Thus, NAC 445.694 remains in the SIP, and EPA is not removing it at this time.27

445B.265, inclusive, and 445B.267) adequately address es CAA section s 110(a)(2)(F)(i), (ii), and (iii). In our evaluation, we also found NRS 445B.570 (“ Confidentiality and use of information obtained by Department; penalty”), cited in the Clark County portion of Nevada’s Pb Infrastructure Submittal, to be supportive of the portion of the CAA section 110(a)(2)(F)(iii) requirement pertaining to the public availability of reports. The relevant supporting requirements in the SIP are listed below.

Nevada Revised Statutes (NRS) requirements applicable to NDEP and supportive of CAA §110(a)(2)(F) Federal Register

NRS 445B.570 Confidentiality and use of information obtained by Department; penalty. 72 FR 11, January 3, 2006

Nevada Administrative Code (NAC) requirements applicable to NDEP and supportive of CAA §110(a)(2)(F) Federal Register

NAC 445B.252 Testing and sampling 73 FR 20536, April 16, 2008

NAC 445B.256 Monitoring systems: Calibration, operation and maintenance of equipment 71 FR 71486, December 11, 2006

NAC 445B.257 Monitoring systems: Location 71 FR 71486, December 11, 2006 NAC 445B.258 Monitoring systems: Verification of operational status. 72 FR 19801, April 20, 2007

NAC 445B.259 Monitoring systems: Performance evaluations 72 FR 19801, April 20, 2007 NAC 445B.260 Monitoring systems: Components contracted for before September 11, 1974 72 FR 19801, April 20, 2007

NAC 445B.261 Monitoring systems: Adjustments 71 FR 71486, December 11 , 2006 NAC 445B.262 Monitoring systems: Measurement of opacity 71 FR 71486, December 11, 2006 NAC 445B.263 Monitoring systems: Frequency of operation 71 FR 71486, December 11, 2006 NAC 445B.264 Monitoring systems: Recordation of data 71 FR 71486, December 11, 2006 NAC 445B.265 Monitoring systems: Records; reports 71 FR 71486, December 11, 2006 NAC 445B.267 Alternative monitoring procedures or requirements 71 FR 71486, December 11, 2006 NAC 445B.315(3) Contents of operating permits: Exception for operating permits to construct; required conditions 77 FR 59321, September 27, 2012

NAC 445B.3368 Additional requirements for application; exception 77 FR 59321, September 27, 2012

NAC 445B.346 Required contents of permit 77 FR 59321, September 27, 2012

NRS 445B.570 requires an y information obtained by NDEP during performance of its duties to be public information unless otherwise designated as confidential information pursuant to the criteria in provisions of NRS 445B.570 . The emission of an air contaminant which has an ambient air quality standard or emission standard or has been designated as a hazardous air pollutant by regulation of the

SEC cannot be certified as being confidential. EPA has determined NRS 445B.570 is s upportive of the component in CAA section 110(a)(2)(F)(iii) that reports be made available to the public.

NAC 445B.252 requires that results of source testing must be submitted to the Director of the DCNR

and th at data must be reduced in accordance with a pplicable procedures. EPA has determined NAC 445B.252 is supportive of CAA section 110(a)(2)(F)(ii) and (iii).

NAC 445B.256 requires owners or operators of all stationary sources identified in Appendix P to 40 CFR Part 51 to install, calibrate, operate and maintain all monitoring equipment necessary for continuously monitoring the pollutants specified in Appendix P for applicable source categories. Those stationary sources must meet the basic requirements of 40 CFR part 51, Appendix P. NAC 445B.256’s

ref erence to Appendix P is consistent with requirements found in 40 CFR 51.214 of part 51, s ubpart K, and therefore, is supportive of CAA section 110(a)(2)(F)(i). NACs 445B.257 through 445B.264 provide additional detail of the monitoring requirements and are also supportive of CAA section 110(a)(2)(F)(i).28

NAC 445B.265 requires a source operating a continuous monitoring system to submit written reports of

excess emissions. The reports are submitted quarterly and must include: (a) the magnitude and time period of the excess emissions; (b) specific identification of each period of excess emissions that occurs during start

- ups, shutdowns, and malfunctions of the affected facility; (c) the nature and cause of any malfunction, if known, and the corrective action ta ken or preventative measures adopted; and (d)

s pecific identification of each period during which the continuous monitoring system was inoperative. EPA has determined NAC 445B.265 is supportive of CAA section 110(a)(2)(F)(ii) and (iii).

NAC 445B.315(3) de scribes conditions that must be in the permit, including: (1) the holder of the operating permit shall retain records of all required monitoring data and supporting information for five years after the date of the sample collection, measurement, report or analysis, and (2) allowances for the Director of the DCNR or his representative to copy records and sample or monitor to demonstrate compliance. The information obtained by the Director under NAC 445B.315(3) becomes public information (except for confident ial information), as per NAC 445B.570, and thus NAC 445B.315(3) is generally supportive of CAA section 110(a)(2)(F)(ii) and (iii).

NAC 445B.3368 establishes additional content requirements for applications for operating permits for those

facilities for w hich applications for operating permits to construct were not previously submitted. Such content requirements include applicable test methods, calculations, compliance plans, and compliance
certifications. NAC 445B.3368 is limited to a subset of sources, b ut for those sources and t o the extent the requirement results in reports that are available to the public, NAC 445B.3368 is generally supportive of CAA section 110(a)(2)(F)(ii) and (iii).

NAC 445B.346 identifies conditions that must be contained in Class II operating permits in addition to the general conditions that apply under NAC 445B.315. These conditions include: (1) all requirements for monitoring, testing and reporting that apply to the stationar y source; and (2) prompt reporting of any deviations from any requirements of the operating permit. NAC 445B.346 is limited to a subset of sources but is generally supportive of CAA section 110(a)(2)(F)(i)

- (iii).

As such, EPA is proposing to find that the portion of the Nevada SIP applicable to NDEP meets the requirements of CAA section 110(a)(2)(F) for the 2008 Pb NAAQS.

Clark County EPA has reviewed the requirements in CAA section 110(a)(2)(F), Nevada’s Pb Infrastructure S ubmittal, and the applicable SI P to determine if Clark County has addressed the CAA section 110(a)(2)(F) requirements. As described elsewhere in this TSD (e.g., see discussion of CAA section 110(a)(2)(C)), in

recent years Clark County made significant revisions to its permit rule requir ements , including the SIP

approved provisions of Sections 12.0, 12.1, 12.2, 12.3, and 12.4.

Clark County requirements supportive of CAA §110(a)(2)(F) Federal Register

Section 12.1: Permit Requirements for Minor Sources 77 FR 64039, October 18, 2012

Section 12.2: Permit Requirements for Major Sources in Attainment Areas (Prevention of Significant Deterioration) 77 FR 64039, October 18, 2012

Section 12.3: Permit Requirements for Major Sources in Nonattainment Areas 77 FR 64039, October 18, 2012 Section 12.4: Authority to Construct Application and Permit Requirements For

Part 70 Sources 77 FR 64039, October 18, 201229

Section 12.1 requires that terms and conditions in a permit for a minor source permit include monitoring, testing, reporting, and recordkeeping requirements that ensure reasonable information is provided to evaluate compliance consistent with permit terms and conditions, the underlying requirements of these regulations, and the CAA

.

In Sections 12.2 and 12.3, major sources shall monitor the emissions of any regulated NSR pollutant that could increase as a result of the project and that are emitted by an applicable emissions unit; and

calculate and maintain a record of the annual emiss ions, in tons per year. The owner or operator of the major stationary source with a plant

- wide applicability limits (PALs) shall comply with the monitoring, recordkeeping, and reporting requirements provided in Sections 12.2.19.12 through 12.2.19.14 for ea ch emissions unit under the PAL through the PAL effective period.

Section 12.4 describes the administrative procedures for sources to apply for and obtain an Authority to Construct Permit (ATC Permit), consistent with the applicable requirements of Sectio ns 12.2 or 12.3. An application for an ATC Permit shall contain, if applicable, a description of how the permittee proposes to comply with the compliance assurance monitoring requirements in 40 CFR Part 64, including a plan describing how the applicant wil l comply with the monitoring design criteria in 40 CFR 64.3. Section 12.4 also requires the permit contain (1) all applicable requirements, emission limits, and standards, 56
and (2) monitoring, recordkeeping, and reporting requirements sufficient to meet th e requirements of 40 CFR Part 64 or paragraph (d) of Section 12.5.2.6, as deemed necessary by the Control Officer.

As such, EPA is proposing to find that the Nevada SIP applicable to Clark County meets the monitoring and reporting requirements of CAA sect ion 110(a)(2)(F)(i) and (ii) for the 2008 Pb NAAQS . However, we previously disapproved Nevada’s infrastructure SIP submittals for the 1997 ozone, 1997 PM 2.5 , and

2006 PM 2.5 NAAQS for CAA section 110(a)(2)(F)(iii) because the provision in the Nevada SIP tha t addressed this requirement (AQR Section 24.5) was repealed by Clark County and is no longer effective as of July 1, 2010. 57 Since rule revisions have not been adopted by the Clark County BCC and submitted to EPA, we are proposing to disapprove the Clark C ounty portion of the Nevada SIP for section 110(a)(2)(F)(iii) for the 2008 Pb NAAQS

The proposed disapprovals for section 110(a)(2)(F)(iii) with respect to Clark County’s SIP

- approved stationary source rules, if finalized, will not trigger the obligation for EPA to promulgate a FIP. Normally, such disapproval would trigger FIP obligations under CAA section 110(c)(1). However, in this instance, the FIP obligations have already been triggered by EPA’s 2012 infrastructure SIP action for sources under Clark County jurisdiction. Thus, no purpose would be served by triggering a duplicative FIP o bligation based on the same identified SIP deficiencies. Substantively, we anticipate that SIP revisions that adequately address the requirements of section 110(a)(2)(F)(iii) for sources under Clark County jurisdiction to be submitted and approved by EPA p rior to expiration of the 2

- year FIP deadline triggered by our 2012 infrastructure SIP action.

Washoe County EPA has reviewed the requirements in CAA section 110(a)(2 )(F), Nevada’s Pb Infrastructure Submittal

, and the Nevada SIP to determine if Washoe Co unty has addressed the CAA section 110(a)(2)(F) requirements. EPA has determined that requirements applicable in Washoe County adequately address

56 Applicable requirements not required by the Act or implementing federal regulations, and that are not in the Nevada SIP, may be included in the permit but shall be specifically designated as being not federally enforceable and not enforceable by a citizen's suit pursuant to the Act, and shall be designated as “county only requirements.” Terms and conditions s o designated are not subject to the requirements that apply to permit review by EPA and affected states

. 57 77 FR 64737 at 64743 to 64744.30

CAA section 110(a)(2)(F)(i), (ii), or (iii). Even though Washoe County does not have a rule in the SIP

that ad equately addresses the monitoring requirement in CAA section 110(a)(2)(F)(i), EPA issued a policy memorandum 58 in May 1980 indicating a state no longer had to promulgate continuous emissions monitoring regulations for sources not yet in existence at the tim e of the memorandum. Based on the

memorandum and prior communications with Washoe County, EPA has determined that Washoe County does not have any sources requiring the type of monitoring described in 40 CFR 51.214 of Subpart K. Therefore, the Nevada SIP as it applies in Washoe County adequately addresses CAA section 110(a)(2)(F)(i).

Washoe County rules supportive of CAA section 110(a)(2)(F)(ii) and (iii) have also been approved into

the SIP

. 59

Washoe County requirements supporting CAA §110(a)(2)(F) Federal Register

030.218 Demonstration of Compliance 77 FR 60915, October 5, 2012 030.230 Recordkeeping 77 FR 60915, October 5, 2012 030.235 Requirements For Source Sampling and Testing 77 FR 60915, October 5, 2012 030.970.A Part 70 Permit Monitoring and Compliance, Compliance Statements 77 FR 60915, October 5, 2012

Rule 030.218 authorizes the Control Officer to require a source to provide applicable data to demonstrate compliance with the conditions of their permit.

Rule 030.230 authorizes the Control Officer to require any permit holder to keep adequate records concerning contaminant emissions for any equipment or process for which the permit was issued. All permittees operating add

- on emissions control equ ipment are required to maintain records sufficient to legally demonstrate that the equipment has operated in compliance with all applicable Federal, State and District regulations.

Rule 030.235 authorizes the Control Officer to require source stack testi ng, or other types of source testing, to determine the exact quantity and effect of emissions produced by stationary sources.

Rule 030.970 requires sources subject to Part 70 permits to annually (or more frequently if required) submit a statement of comp liance addressing each term or condition of operation on an item by item basis. The compliance statement includes a variety of criteria such as the compliance status and monitoring, record keeping

, and reporting requirements, and test methods used for dete rmining the compliance. Approval of Rule 030.970 into the SIP was intended to address CAA sections 110(a)(2)(F)(ii) and (iii).

58 Clarification of Requirements for Inclusion of Continuous Emission Monitoring Provisions in State Imp l ementation Pla ns from Edward E. Reich, Director of the Division of Stationary Source Enforcement, to Enforcement Division Directors and Air and Hazardous Materials Division Directors in Regions I

- X dated May 9, 1980. The Reich memorandum states, “... a state need not prom ulgate CEM regulations to apply to Appendix P sources not yet in existence in the state. Appendix P by its terms permits states, in their CEM regulations, to exempt from its coverage sources which would be subject to any NSPS requiring CEM. All four of the source categories covered by Appendix P would, if new, be subject to NSPS continuous monitoring requirements. Should a source meeting the Appendix P size threshold be subsequently constructed in a state, it would be governed by the CEM provisions of the applicable NSPS. Coverage under Appendix P would therefore be unnecessary to assuring the continuous monitoring of that new source. ”

59 40 CFR 52.1473 applies in Washoe County and contains a federal requirement addressing CAA section 110(a)(2)(F)(iii).

This requirement remains in effect, and EPA is not removing it at this time.31

As such, EPA is proposing to find that the Nevada SIP applicable to Washoe County meets the requirements of CAA section 110(a)(2 )(F) for the 2008 Pb NAAQS

.

Conclusion In conclusion, EPA has reviewed the requirements in CAA section 110(a)(2)(F) and compared them to

the Nevada Pb Infrastructure Submittal , other supporting information, and the applicable SIP. Based on this review, we propose to find that the portion of the Nevada SIP that applies to NDEP and Washoe County a dequately addresses CAA sections 110(a)(2)(F)(i), (ii), and (iii). With respect to the portion of the Nevada SIP that applies to Clark County, we propose to find that CAA sections 110(a)(2)(F)(i) and (ii) have been met, and that section 110(a)(2)(F)(iii) has not been met, as discussed above.



### CAA Section 110(a)(2)(G)

– Emergency episodes

CAA section 110(a)(2)(G) requires SIPs to “ provide for autho rity comparable to that in section 303 and adequate contingency plans to implement such authority.”

EPA promulgated rules for emergency episodes in 1971 and revised those rules in 1986 to clarify state requirements related to emergency episodes found in s ection 110(a)(2)(G). These rules are found at 40 CFR 51.150 through 153, inclusive. EPA has also issued guidance on this subject. 60

Nevada’s response to this requirement

Nevada’s Pb Infrastructure Submittal stated that e mergency powers are provided in NRS

445B.560 (“Plan or procedure for emergency”) and NAC 445B.230 (“Powers and duties of Department”), which are in the Nevada SIP, and that these provisions are adequate to constrain Pb emissions in the event of an emergency. The submittal also notes that the state is classified as a Priority III area for several NAAQS pollutants, and thus emergency episode plans are not required, and that it’s reasonable to assume that the same would apply for Pb.

This idea is extended in the Washoe County portion of the sub mittal, which asserts that the federal regulations at 40 CFR part 51, Appendix L do not specify action levels for Pb. 61 This portion of the submittal also reiterates that there are no sources in Washoe County that trigger the requirements in 40 CFR part 58, Appendix D for source

- oriented monitoring.

The submittal also identifies NRS 445B.500(1)(d) as providing the authority in the appropriate counties (i.e., Clark and Washoe counties) to provide regulations for emergency standards and abatement procedures p ursuant to NRS 445B.560. The Clark County portion further states that AQR Section 70 (“Emergency Procedures”) 62 addresses emergency episode requirements and that AQR Section 6 (“Injunctive Relief”) 63 gives Clark County authority to use judicial means to

enfo rce compliance or restrain violations of any AQR provision.

EPA’s evaluation

As asserted in the Clark County portion of Nevada’s Pb Infrastructure Submittal, EPA has not promulgated regulations governing Pb emergency episodes and, accordingly, has not clas sified areas as Priority I, IA, II, or III. EPA’s 2011 Pb Guidance noted that EPA expects that a Pb emissions event that

60 e.g., EPA’s 2011 Pb Guidance, page 14.

61 Note that Appendix L are model regulations rather than federal requirements.

62 Subsections 70.1

- 6 were approved into the Nevada SIP on Augus t 27, 1981 (46 FR 43141).

63 Subsection 6.1 was approved into the Nevada SIP on August 27, 1981 (46 FR 43141).32

presents an imminent and substantial endangerment to public health or welfare would be unlikely. 64 The guidance further notes that the c entral components of a contingency plan would be to reduce emissions from the source at issue and public communication or, in the alternative, that states may make the case that a specific contingency plan is not needed beyond having the authority to restr ain sources from causing or contributing to an imminent and substantial endangerment. Nevada has chosen the latter approach given the absence of large Pb sources in the state and the existence of emergency episode authorities covering the entire state.

NRS 445B.560 provides the SEC the authority to provide “ for alert, warning, and emergency standards and abatement procedures relative to air pollution episodes or emergencies constituting, or likely to constitute, an imminent and substantial danger to the health of persons .” See NRS 445B.560(1). It also provides authority for the Director of the DCNR to require sources to develop emergency episode plans, as per NRS 445B.560(2), 65 and to order the reduction or discontinuation immediately of air contaminant

em issions that constitute an emergency, as per NRS 445B.560(3).

The SEC implemented such authority by adopting NAC 445B.229, which provides authority to the

Director of the DCNR and local air pollution control agencies, upon determination of a general air

p ollution emergency, or an air pollution emergency due to one or more stationary sources, to order persons causing or contributing to the emergency to reduce or discontinue the emission of air contaminants. Similarly, the SEC used its authority to adopt Sec tion 6 (“Emergency Episode Plan”) of Nevada’s January 28, 1972 submittal, which was last approved by EPA on July 10, 1980, 66 herein referred to as the “Nevada Emergency Episode Plan.” The Nevada Emergency Episode Plan sets forth specific procedures to be fo llowed in the event of an air pollution emergency in the three Air Quality Control Regions included in the State of Nevada , though it does not specify “substantial endangerment

levels” for Pb

.

Clark County and Washoe County have each adopted regulations f or emergency episodes that have been incorporated into the Nevada SIP. Clark County AQR Section 70 (“Emergency Procedures”) was approved into the Nevada SIP on August 27, 1981 (46 FR 43141). 67 We note that Clark County AQR Section 70.1 refers specifically t o the state’s Section 6 “as a guide for the actions during an episode condition” (emphasis added) and that its provisions generally follow provisions of NRS 445B.560, NAC 445B.229, and NAC 445B.230 while establishing the Clark County Control Officer’s auth ority to order reduction or discontinuation of air contaminant emissions during an emergency, and to require emergency episode planning by sources.

Washoe County DBOH Air Quality Regulation (AQR) 050.001 was approved into the SIP on June 18,

2007

. 68 This r egulation begins with defining its purpose, applicability (the whole Health District), and

64 EPA’s 2011 Pb Guidance, page 13.

65 NAC 445B.230 (“Powers and duties of Department”) manifests the authority of NRS 445B.560 by requiring any source emitting more than 100 tpy of regulated air pollutants to prepare an emergency management plan upon written notice from

the Director.

66 45 FR 46384 at 46385. EPA disapproved Section 6.1.5 of the Plan because it did not meet the requirements of 40 CFR 51.16 and Appendix L.

67 CCR Section 70 was revised on July 1, 2004

– a version that has not been submitted for incorporation into the SIP.
However, the only textual difference between the provisions are the replacement of “Health District” with “Department of Air Quality and Environmental Management” in the Section 70.3 phrase “ incorporated or unincorporated areas of the Health

District.” Because the se both referred to a geographic area, which is the entirety of Clark County, there is no substantive difference. Thus while the August 27, 1981 approval suffices for purposes of this infrastructure SIP evaluation, we recommend that Clark County submit the revised Clark County AQR Section 70 for incorporation into the SIP.

68 72 FR 33397

.33

relevant terms ( see AQR 050.001 Sections A and B). It then establishes emergency episode criteria levels for three stages (Alert, Warning, and Emergency) for several pollutants, such as ozone and PM 2.5 , though not for Pb. ( see AQR 050.001 Section C). While this implementing regulation for Washoe County does not apply to Pb, the state

- wide authority of NRS 445B.560 and implementing state regulation NAC 445B.229 ensure that the Washoe County DBOH has adequate authority to take action in the event of a Pb emergency episode. The prior approvals of the state, Clark County, and Washoe County provisions, as identified above, continue to provide an adequate basis for meeting t he authority requirement of CAA section 110(a)(2)(G). Also, as discussed above for section 110(a)(2)(A), the 2008 National Emission Inventory of Pb sources in Nevada indicates that the emissions of any given source

are well below the mandatory monitoring t hresholds for airports (1.0 tpy) or stationary sources (0.5 tpy), which complements EPA’s expectation that a Pb emergency episode would be unlikely. Thus , we propose to find that the Nevada SIP meets the applicable requirements of CAA section 110(a)(2)(G) for

the 2008 Pb NAAQS

.



### CAA Section 110(a)(2)(H)

– SIP revisions

Section 110(a)(2)(H) requires SIPs to : provide for revision of such plan

— (i) from time to time as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and (ii) except as provided in paragraph (3)(C), whenever the Administrator finds on the basis of information available to

the Administrator that t he plan is substantially inadequate to attain the national ambient air quality standard which it implements or to otherwise comply with any additional requirements

established under this Act.

Nevada’s response to this requirement
The NDEP portion of Nevada ’s Pb Infrastructure Submittal states that NRS 445B.205 designates the DCNR as the “State Air Pollution Control Agency” and that, pursuant to NAC 445B.053, the Director of the DCNR has assigned NDEP to act on behalf of the Director “for the purposes of ado ption, revision and submittal of state plans.” NDEP also commits to revise the Nevada SIP in response to “changes in the NAAQS, availability of improved methods for attaining the NAAQS, or in response to a USEPA finding that the SIP is substantially inadeq uate.

The Clark County portion of the submittal asserts that Clark County AQR Section 2 (“Procedures for Adoption and Revision of Regulations and for Inclusion of those Regulations in the State Implementation Plan”) sets forth the requirements for adoptin g regulations and other materials to be incorporated into the SIP, 69 including SIP revisions per 40 CFR 51.104(a) (implementation plans), individual compliance schedules per 40 CFR 51.260, and other SIP revisions submitted to NDEP per 40 CFR 51.104(d) (vari ances).

The Washoe County portion of the submittal states that Washoe County AQR 020.005 authorizes the Control Officer to enforce section AQR 020.0051 (“Board of Health

- Powers and Duties”), which in turn authorizes the Washoe County DBOH to revise a SIP to achieve and maintain levels of air quality to protect human health.

69 Note that t he Nevada SIP contains an older version of Clark County AQR Section 2 (“Air Pollution Control Board”) ( 46

FR 43141 , August 27, 1981 ), which is unrelated to our evaluation of Nevada’s Pb Infrastructure Submittal for CAA section 110(a)(2)(H). The current version of Clark County AQR Section 2 (“Procedures for Adoption and Revision of Regulations and for Inclusion of those Regulations in the State Implementation Pla n”), amended December 20, 2005, is included in the docket for this proposal.34

EPA’s evaluation

NDEP, Clark County, and Washoe County EPA has reviewed the requirements in CAA section 110(a)(2)(H)

, Nevada’s Pb Infrastructure Submittal

, and the Nevada SIP

. In p articular, i n add ition to the provisions cited in Nevada’s Pb Infrastructure Submittal (such as NRS 445B.205), EPA reviewed NRS 445B.135, 445B. 210, 445B.220, and 445B.500 as possibly providing adequate “authority” for NDEP, Washoe County, and Clark County to implement CAA section 110(a)(2)(H).

 NRS 445B.135 “Federal Act” defined. ( see 71 FR 51766, 8/31/2006)

 NRS 445B.205 Department designated as State Air Pollution Control Agency. ( see 72 FR 11, 1/3/2007)

 NRS 445B.210 Powers of Commission. ( see 71 FR 51766, 8/31/2006)

 NRS 445B.220 Additional powers of Commission. ( see 71 FR 51766, 8/31/2006)

 NRS 445B.500 Establishment and administration of program; contents of program; designation of air pollution control agency of county for purposes of federal act; powers and duties of local air pollution control board; notice of public hearings; delegation of authority to determine violations and levy administrative penalties; cities and smaller counties; regulation of certain electric plants prohibited. ( see 71 FR 51766, 8/31/2006)

Conclusion We propose to find that Nevada statutes provide for revision of the SIP (1) as necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard and (2) whenever the Administrator finds that Nevada’s plan is substantially inadequate to attain the NAAQS or does not comply with requirements established under the Act. Therefore, we propose to approve Nevada’s Pb Infrastructure Submittals for section 110(a)(2)(H) for the 2008 Pb NAAQS.



### CAA Section 110(a)(2)(I)

– Plan revisions for nonattainment areas

CAA section 110(a)(2)(I) requires SIPs to “ in the case of a plan or plan revision for an area designate d as a nonattainment area, meet the applicable requirements of part D (relating to nonattainment areas).”

While this section requires States to meet nonattainment area requirements, pursuant to CAA title I, part D, when submitting plans or plan revisions for nonattainment areas, EPA has concluded that the submission of, and subsequent EPA action on, nonattainment SIP revisions by States is not governed by

the three

- year submission deadline identified in CAA section 110(a)(1). Instead, SIP revisions for

non attainment areas are due and evaluated under the requirements for nonattainment areas described in part D.

Nevada’s response to this requirement
The NDEP portion of Nevada’s Pb Infrastructure Submittal refers to EPA’s 2011 Draft Pb Guidance, noting that EP A does not expect infrastructure SIP submittals to address this element, while the Washoe County portion of the submittal indicates that Washoe County AQMD commits to submit SIP revisions when and where areas are newly designated nonattainment.

EPA’s evalu ation
As noted above, the specific nonattainment area plan requirements of section 110(a)(2)(I) are subject to the timing requirement of section 172, not the timing requirement of section 110(a)(1). This element is therefore not applicable to this action. Any evaluations of the Nevada SIP in relation to the requirements35

of CAA title I, part D will be completed in relation to the relevant nonattainment area plans. We note that no area of Nevada is currently designated as nonattainment for the 2008 Pb NAAQS.



### CAA Section 110(a)(2)(J)

– Consultation with government officials; public notification; and PSD and visibility protection

CAA section 110(a)(2)(J) requires SIPs to “meet the applicable requirements of section 121 (relating to consultation), section 127 (re lating to public notification), and part C (relating to prevention of significant deterioration of air quality and visibility protection).”

CAA section 121 requires SIPs, in carrying out the requirements under the CAA requiring SIPs to contain any transpo rtation controls, air quality maintenance plan requirements or preconstruction review of direct sources of air pollution, or any measure referred to in part D or part C of title I, 70 to provide a process of consultation with general purpose local governments, designated organizations of elected official of local governments

, and any Federal land manager (FLM) having authority over Federal land

to which the state plan applies. Such pro cess shall be in accordance with regulations promulgated by

EPA. In essence, section 121 requires a satisfactory process of consultation with three kinds of organizations (general purpose local governments, designated organizations of elected officials of local governments, and any FLM) for three kinds of planning arenas (transportation controls, air quality maintenance plans, and preconstruction review of direct sources of air pollution, including PSD).

CAA section 127 requires SIPs to contain measures to effectively notify the public during any calendar year on a regular basis of instances or areas in which any NAAQS is exceeded or was exceeded during any portion of the preceding calendar year ; to advise the public of the health hazards associated with

su ch pollution ; and to enhance public awareness of the measures which can be taken to prevent such standards from being exceeded and the ways in which the public can participate in regulatory and other efforts to improve air quality. Such measures may includ e the posting of warning signs on interstate highway access points to metropolitan areas or television, radio, or press notices or information.

For a discussion of the CAA title I, part C req uirements, see our evaluation for section 110(a)(2)(C)

above.

R elated EPA Regulations and Guidance EPA’s regulations concerning consultation are set forth in subpart M (“Intergovernmental Consultation”) of 40 CFR part 51, sections 51.240 (“General plan requirements”) and 51.241 (“Nonattainment areas for carbon monoxid e and ozone”). Under section 51.240, each SIP must identify organizati ons by official title that will participate in developing, implementing, and enforcing the SIP and the responsibilities of such organizations. The SIP shall include any related agreement s or memoranda of understanding among the organizations. Under section 52.241, for each Air Quality Control Region (AQCR) or portion of an AQCR in which the NAAQS for carbon monoxide or ozone, the Governor must certify, after consultation with local offici als, the organization responsible for developing the revised SIP or portions thereof for such AQCR.

70 Section 121 was added by the CAA Amendments of 1977, and it also refers to section 113(d) (relating to certain enforcement orders), but section 113(d) was significantly amended by the CAA Amendments of 1990, and as so amended, no longer relates to state e nforcement orders. Also, we view the requirement of section 121 to provide a satisfactory process of consultation for “any measure referred to in part D” to be outside the scope of infrastructure SIP evaluations since the part D requirements pertain to non attainment planning requirements.36

EPA’s regulations concerning public notification are set forth in subpart O (“Miscellaneous Plan Content Requirements”) of 40 CFR part 51, section 51.285 ( “Public notification”). Section 51.285 requires SIPs to provide for “ (a) N otifying the public on a regular basis of instances or areas in which any primary standard was exceeded during any portion of the preceding calendar year; (b) A dvising the public of the health hazards associated with such an exceedance of a primary standard; and (c)

I ncreasing public awareness of: (1) Measures which can be taken to prevent a primary standard from being exceeded, and (2) Ways in which the public can participate in regu latory and other efforts to improve air quality. ”

In addition, EPA’s 2011 Pb Guidance states that EPA does not expect states to meet the applicable requirements for visibility protection under Part C in their submittals for the 2008 Pb NAAQS. While

EPA re cognizes that states are subject to visibilit y protection and regional haze program requirements under Part C of the Act (which includes sections 1 69A and 169B), in the event of the establishment of a new primary NAAQS, the visibility protec tion and region al haze program requirements under part C do not change. Thus, EPA concludes there are no new applicable visi bility protection obligations under section 110(a)(2)(J) as a result of the 2008 Pb NAAQS. 71

Nevada’s response to this requirement

Consultation

Th e NDEP portion of Nevada’s Pb Infrastructure Submittal identifies a number of SIP provisions as providing the appropriate process of consultation. These include SIP

- approved statutory powers and responsibilities of the SEC and DCNR and statutes regarding c ooperation among the local air pollution control board and regional planning coalition and regional transportation commission in counties with a large population (i.e., NRS 445B.503, which applies in Clark County) and regarding composition of

District Boar ds of Health (i.e., NRS 439.390, which applies in Washoe County). They also include regulatory provisions for permit applications and operating permits that have largely been approved into

the Nevada SIP. 72 This portion of the submittal also cites non

- SIP p rovisions as supporting CAA section 121, including a statutory declaration of public policy, parts of the Nevada Administrative Procedure Act (NRS 233B) that create opportunities for the public to review proposed regulations, and a regulation [NAC 45B.221 (“Adoption by reference and applicability of certain provisions of federal law and regulations”)] that incorporates the federal PSD requirements, which include requirements to consult

with a ffected land managers. Lastly and importantly, Attachment D of the August 30, 2012 portion of Nevada’s Pb Infrastructure SIP included a number of revisions to the state’s provisions for consultation

in the Nevada SIP.

The Clark County portion of the submittal states that Clark County will consult with local governments and affected land managers when carrying out the CAA and that AQR Section 2 (“Procedures for Adoption and Revision of Regulations and for Inclusion of those Regulations in the State Implementation Plan”) outlines the procedures for adopting and revising re gulations.

The Washoe County portion of the submittal states that Washoe County AQR 020.005 and an inter

- local agreement among the City of Reno, City of Sparks, and Washoe County 73 authorize participation by local political subdivisions in carrying out the CAA. It also states that Washoe County AQMD commits to include all stakeholders in the SIP development process.

71 EPA’s 2011 Pb Guidance, p. 16 of the Attachment.

72 77 FR 59321, September 27, 2012.

73 Interlocal Agreement Concerning the Washoe County District Health Department, 1993 version.37

Public Notification The NDEP portion of Nevada’s Pb Infrastructure Submittal states that NDEP maintains a website ( http://ndep.nv.gov ) that describes the state’s air quality planning and air pollution control programs and includes public information, such as the annual Nevada Air Quality Trends Report, and real

- time monitoring of coarse PM (PM 10 ) in Pahrump, Nevada. The Clark County portion of the submittal states

that near

- real time ambient air monitoring data for Pb will be posted to Clark County DAQ’s website

and that SIP

- approved Clark County AQR Section 70 (“Emergency Procedures”) authorizes the Control Officer to declare an alert or emergency if sources of air contaminants cause or may cause an imminent and substantial endangerment to human health. The Washoe County portion of the sub mittal cites SIP

approved Washoe County AQR 050.001 as authorizing the Washoe County AQMD to advise the public on measures to take to reduce exposure during elevated air pollutant concentrations and references its website ( http://www.washoecounty.us/health/aqm/home.html ) as presenting near

- time ambient air monitoring data and a trends report, which summarizes Washoe County ambient air quality.

PSD and Visibility Protection

Nevada’s Pb Infrastruc ture Submittal asserts that NDEP and Washoe County have full delegation of the federal PSD program, including coverage for greenhouse gases and, in the NDEP portion of the submittal, notes that EPA’s 2011 Draft Pb Guidance stated that EPA does not expect t he visibility protection portion of section 110(a)(2)(J) to be applicable for Pb, though the submittal references EPA’s proposed approval of Nevada’s Regional Haze SIP. 74 The Clark County portion of the submittal lists Clark County AQR 25, regarding excess emissions during malfunction, and several sub

- sections of Clark County AQR Section 12, regarding preconstruction permit requirements

, as containing the relevant provisions for PSD and visibility protection. The Washoe County portion of the submittal also

n otes that the Nevada AQR Article 13 (“General Provisions for the Review of New Sources”) requires an environmental evaluation before a registration certificate is issued.

EPA’s evaluation

Consultation Nevada’s August 30, 2012 submittal is the primary basis for our evaluation of Nevada’s consultation provisions given that it: a) substantially revised the October 12, 2011 submittal; b) included Attachment D (Section 11, “Intergovernmental Consultation”) to replace the outdated Section 11 (“Intergovernmen tal Relations”) of the 1972 SIP; and c) provided one revised and two new statutes for incorporation into the SIP.

Attachment D of Nevada’s August 30, 2012 submittal [i.e., Section 11 (“Intergovernmental Consultation”) and Exhibits] identifies the relevant federal statutes and regulations, as discussed above in the opening paragraphs of our evaluation herein for CAA section 110(a)(2)(J), and describes the process for consultation for the following geographic areas relevant to the SIP: statewide, Clark Count y, Lake Tahoe Basin, and Washoe County. For each area, Attachment D identifies the applicable state and local provisions governing consultation; describes provisions relevant to consultation in permitting new or modified stationary sources; and, for Clark County, Lake Tahoe Basin, and Washoe County, addresses consultation’s role in transportation planning and conformity to the Nevada SIP. Attachment D also includes four exhibits: two are letters in support of the legal authority of certain parties (i.e., th e NDEP Administrator, and the Clark County BCC), while the other two are state statutes in support of

74 76 FR 36450, June 22, 2011. Also, see o ur evaluation of Nevada’s Pb Infrastructure SIP for CAA section 110(a)(2)(D)(i)(II) above in this TSD for further discussion of EPA’s action on Nevada’s Regional Haze SIP.38

consultation requirements in Clark County (NRS 445B.503) and representative composition of the DBOH in Washoe County (NRS 439.390).

The revised Section 11 (“Intergovernmental Consultation”), NRS 439.390, and the 2011 codifications of NRS 445B.500 and NRS 445B.503 were all approved into the Nevada SIP in 2012. 75 Washoe County’s Interlocal Agreement Concerning the Washoe County District Health Department als o embodies a consultative process in that the DBOH must include members from the City of Reno, the City of Sparks, and Washoe County. It was also approved into the Nevada SIP in EPA’s October 23, 2012 final rule, though it was provided in the state’s separ ate, December 4, 2009 infrastructure SIP submittal.

EPA is proposing to f

ind that Nevada’s August 30, 2012 Pb Infrastructure Submittal provides a satisfactory process of consultation throughout the state with general purpose local governments; designated organizations of elected officials of local governments; and any affected Federal Land Manager for transportation controls, maintenance plan requirements, and preconstruction review of direct sources of air pollution (including PSD). EPA is also proposing to find that Nevada’s

Infrastructure Submittal identifies organizations that participate in developing, implementing, and enforcing the plan at the state level and in Clark County, Lake Tahoe Basin, and Washoe County, as per the requirement to do so under 40 CFR 51.240.

Public Notification The websites for NDEP ( http://ndep.nv.gov/ ), Clark County DAQ ( http://www.clarkcountynv.gov/depts/airquality/pages/default.aspx ), and Washoe County AQMD ( http://www.washoecounty.us/health/aqm/home.html ) offer the public a broad array of information

about st ate and county air quality and the programs designed to maintain and improve air quality. As such, in practice they serve the purposes of advising the public of the health hazards associated with air pollution, enhancing public awareness of air quality con cerns, and providing opportunities for the public to participate in regulatory and other efforts to improve air quality. These all fall within the themes of CAA section 127. However, the websites themselves are not SIP

- approved measures, so we evaluated

th e Nevada SIP to identify such SIP

- approved measures that might formally address CAA section 127.

In connection with this requirement, the existing applicable Nevada SIP only includes a regulation applicable within Clark County. Clark County AQR S ection 4 (“Control Officer”), subsection 4.12 (“Public Notification”) 76 requires the Control Officer to notify the public on a regular basis of instances or areas in which any ambient air quality standard was exceeded during any portion of the preceding calendar yea r and also addresses the other requirements in CAA section 127. Because Clark County section 4.12 refers to any ambient air quality standard, it applies to the 2008 Pb NAAQS even though the SIP rule dates from 1981. Clark County’s current rulebook continue s to include section 4.12 as approved into the SIP in 1981.

The highest emitting Pb sources in Nevada are in Clark County (i.e., North Las Vegas and McCarran International Airports), though their 2008 NEI levels are well below the source

- oriented reportin g thresholds, as discussed above for CAA section 110(a)(2)(B), and the whole State of Nevada is designated as unclassifiable/attainment for the 2008 Pb NAAQS ( see 40 CFR 81.329). Furthermore, Clark County is the only area in Nevada that is required to have a population

- oriented Pb monitor. Therefore, the lack of specific public notification requirements in the SIP for the rest of Nevada is acceptable with respect to the 2008 Pb NAAQS

. Therefore , based on the existing SIP rule (Clark County

75 77 FR 64737, October 23, 2012.

76 46 FR 43141, August 27, 1981

.39

AQR S ection 4.12)

, EPA is proposing to find that the Nevada SIP meets the requirements of CAA section 127 with respect to the 2008 Pb NAAQS

.

PSD and Visibility Protection Pursuant to the CAA, a SIP should provide for the implementation of any new PSD requirements that

are triggered upon the effective date of any new NAAQS. However, sources in a state may be subject to the federal PSD requirements pursuant to 40 CFR 52.21, if a state does not have a SIP

- approved PSD program. As discussed above for section 110(a)(2)(C), EPA previously promulgated FIPs to address the PSD program requirements under part C of title I of the CAA by incorporating 40 CFR 52.21 into the Nevada SIP, except for Clark County, and fully delegated implementation of the PSD FIPs to NDEP and Washoe County. However, until a state adopts and submits a PSD program for EPA approval that applies to all regulated pollutants, including GHGs, its SIP is not approvable with respect to CAA section 110(a)(2)(J). Therefore, we propose to disapprove the NDEP and Washoe County portions of
Nevada’s Pb Infrastructure Submi ttal on the basis that the Nevada SIP does not contain adequate provisions to meet the PSD requirement of section 110(a)(2)(J) for the 2008 Pb NAAQS for sources under NDEP’s or Washoe County’s jurisdiction

.

For Clark County, as discussed above for section 110(a)(2)(C), the SIP

- approved PSD program in Clark County contains certain “structural” elements, but is missing others for PM 2.5

. Because Clark County’s

SIP

- approved PSD program does not address the PM condensable and PM 2.5 increment requirements under part C of title I of the CAA and 40 CFR 51.166 (b)(49) and 40 CFR 51. 166 (c ) , respectively, we propose to disapprove the Clark County portion of N evada’s Pb Infrastructure Submittal on the basis

that the Nevada SIP does not meet the PSD

- related requirements of CAA section 110(a)(2)(J) in Clark County. The rationale for FIP obligations discussed above for section 110(a)(2)(C) for Clark County’s PSD program applies for section 110(a)(2 )(J) for sources under Clark County jurisdiction. That is, as a result of EPA’s October 18, 2012 limited disapproval of Clark County’s PSD program with respect to the requirements regarding condensable particular matter (77 FR 64039), EPA is already obliga ted to promulgate a FIP to address this deficiency no later than two years from the effective date of that action,
i.e., by November 19, 2014. This FIP obligation remains unchanged. 77 Since that time, the July 20, 2012 deadline for submitting adopted PM 2.5 increments consistent with EPA’s requirements in 40 CFR

51. 166 (c) has passed ( see 75 FR 64864 at 64898), and Clark County’s PSD program is now deficient with respect to this requirement as well. Thus, we propose to disapprove the Clark County portion of

N evada’s Pb Infrastructure Submittal on the basis of these two PSD program deficiencies. If finalized, this proposed disapproval would require EPA to promulgate a narrow FIP establishing PM 2.5 increments consistent with the requirements of 40 CFR 51.166(c) in Clark County, unless Nevada submits and EPA approves PSD provisions that correct this narrow deficiency within two years after the effective date of

such final action.

With regard to the requirement of the plan to meet the applicable requirements for v isibility protection,

EPA’s 2011 Pb Guidance states that EPA would not expect to treat this provision as applicable for purposes of the infrastructure SIP approval process, as noted by the NDEP portion of Nevada’s Pb Infrastructure Submittal. Thus, while S IP

- approved provisions like those cited for the state (e.g., Nevada’s 2009 Regional Haze SIP), Clark County [e.g., subsections of Section 12 (preconstruction permitting), Section 25 (excess emissions during malfunction)] and Washoe County (e.g., Nevada AQR Article 13 (“General Provisions for the Review of New Sources”) may address visibility protection, we do not find any visibility protection obligations under CAA section 110(a)(2)(J) for the 2008 Pb NAAQS.

77 See n. 22, supra

.40

Conclusion Based on our review of the applicable Nevada SIP and Nevada’s Pb Infrastructure Submittal , we propose to conclude that Nevada has met the consultation, public notification, and visibility requirements of section 110(a)(2)(J) for the entire state for the 2008 Pb NAAQS. We also propose to

concl ude that the NDEP, Clark County, and Washoe County portions of the Nevada SIP do not meet the

PSD

- related requirements of section 110(a)(2)(J) for the reasons discussed in our evaluation for sections 110(a)(2)(C) and 110(a)(2)(J). Accordingly, we propose t o approve the Nevada Pb Infrastructure

Submittal as meet ing the consultation and public notification requirements of CAA section 110(a)(2)(J)

for the 2008 Pb NAAQS state wide . We also propose to disapprove the Nevada Pb Infrastructure

Submittal for the PSD

- related requirements of CAA section 110(a)(2)(J) for the 2008 Pb NAAQS

statewide.



### CAA Section 110(a)(2)(K)

– Air quality modeling and submission of modeling data

Section 110(a)(2)(K) requires SIPs to : provide for

— (i) the performance of such air quality modeling as the Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any air pollutant for which the Administrator has established a national ambient air quality standard, and (ii) the submission, upon request, of data related to such air quality modeling to

the Administrator.

To meet Element K, EPA recommends that states submit, for inclusion in the SIP (if not already part of the SIP), the statutory or regulatory provisions that provide state and local air agencies with the authority to perform the following actions along with a narrative explanation of how the provisions meet the requirements of this elemen t : (1) conduct air quality modeling to predict the effect on ambient air quality of any emi ssions of any air pollutant for which a NAAQS has been promulgated, and (2) provide such modeling data to the EPA Administrator upon request. 78

Additionally, EPA requires air quality impacts analyses for purposes of the regulation of new sources

and modifi cations and has prescribed guidelines on air quality models. See 40 CFR 51.160(f), 51.166(l), and Appendix W (“Guideline on Air Quality Models”). 79 Specifically, EPA’s PSD regulations in 40 CFR 51.166 require that SIPs specify that all applications of air quality modeling for PSD purposes must be “based on the applicable models, data bases, and other requirements specified in appendix W of [part 51].” 40 CFR 51.166 (l). Likewise, EPA’s general NSR regulations in section 51.160 require that SIPs contain procedures to “discuss the air quality data and the dispersion or other air quality modeling used to meet the requirements of [40 CFR part 51, subpart I]” and require that all such applications of air quality modeling be “based on the applicable models, data bases, and other requirements specified in appendix W of [part 51].” 40 CFR 51.160(f). Both of these provisions state that where an air quality model specified in A ppendix W 80 is inappropriate, the model may be modified or another model substituted with EPA’s written approval, following notice and opportunity for public comment. 40 CFR

78 See 2013 Infrastructure SIP Guidance at 55.

79 EPA also requires that each SIP identify and describe the air quality model(s) used to demonstrate the adequacy of a control strategy to provide for the timely attainment and maintenance of the NAAQS ( see 40 CFR 51.112 and 51.115(b)) and has issued guidance for such purposes. See, e.g., U.S. EPA, Office of Air Quality Planning and Standards, “Guidance on the Use of Models and Other Analyses for Demonstrating Attainment of Air Quality Goals for Ozone, PM 2.5 , and Regional Haze,” EPA

- 454/B

- 07

- 002 (April 2007). These provisions address requirements under part D, title I of the Act and do not apply to our evaluation of an infrastructure SIP under CAA section 110(a).

80 EPA’s requirements for air quality modeling in 40 CFR part 51, appendix W, were significantly amended on November 9, 2005 (70 FR 68218).41

51.160(f)(2), 51.166(l)(2). EPA’s PSD regulations also provide that SIPs must requi re the permitting authority to make available in at least one location in the region where a proposed source would be constructed a copy of all materials that the permit applicant submitted, and to notify EPA (among others) of the public comment period on any proposed PSD permit. 40 CFR 51.166(q)(2)(ii), (iv).

NDEP’s response to this requirement
The NDEP portion of Nevada’s Pb Infrastructure Submittal states that several NAC regulations (i.e., NAC 445B.308, 445B.310, and 445B.311) that have been approved in to the Nevada SIP require an environmental evaluation of new and modified stationary sources consistent with the requirements of CAA section 110(a)(2)(K).

The Clark County portion of the submittal state s that Clark County’s air quality modeling comports w ith EPA’s final guidance on the use of models in NAAQS attainment demonstrations, that the County will

continue to model air quality according to EPA and Clark County DAQ modeling guidance and protocols and to submit data and results to EPA when requested, and that Clark County AQR Sections 12.2 (“Permits Requirements for Major Sources in Attainment Areas”) and 12.4 (Authority to Construct Application and Permit Requirements for Part 70 Sources”) require air quality modeling consistent with EPA requirements

.

The Washoe County portion of the submittal references two Washoe County AQR regulations (030.235 (“Requirements for Source Sampling and Testing”) and 030.503 (“Conditions for Approval”) as meeting the requirements of CAA section 110(a)(2)(K). AQR 030.23 5 was approved into the SIP, 81 but AQR

030.503 has not been submitted as a revision to the Nevada SIP.

EPA’s evaluation

EPA has reviewed both Nevada’s Pb Infrastructure Submittal , which discusses SIP

- approved regulations

for the review of new and modified s ources of emissions and attainment demonstrations

, and several

SIP

- approved statutes that authorize the state and local agencies in Nevada to model ambient air quality and to submit data to EPA, upon request.

Per Nevada Revised Statute (NRS) 445B.210 (“Po wers of Commission”), the Nevada SEC is vested with authority to adopt measures necessary for attainment and maintenance of national standards. Similarly, NRS 445B.230 (“Powers and duties of Department”) authorizes the DCNR, which manages air quality plann ing and control responsibilities through NDEP, to make determinations and issue orders to implement the purposes of the state’s air p ollution laws (i.e., NRS 445B.100 thru 445B.640), excluding laws for the control of emissions from engines (i.e., NRS 445B. 700 thru 445B.845). Consistent with 40 CFR part 51, Appendix W, under section 7.0 (“General Modeling Considerations”), section 7.2.1.1 (“Design Concentrations for SO2, PM

- 10, CO, Pb, and NO 2 ”), paragraph (a), states that “[a]n air quality analysis of... Pb... is required to determine if the source will (1) cause a violation of the NAAQS, or (2) cause or contribute to air quality deterioration greater than the specified allowable PSD
increment.” These SIP

- approved 82 requirements are discussed further in section 1 0.0 (“Regulatory Application of Models”) for several NAAQS, including Pb. Thus, air quality modeling for Pb to determine violations of the NAAQS or effects on PSD increments falls within the authorities of the SEC and DCNR to secure air quality that protec ts human health and welfare. In addition, NRS 445B.590 (“ Account for the Management of Air Quality: Creation and administration; use; intere st; payment of claims”), section (2)(a)(7) authorizes the DCNR to use funds from the Account for the Management of

81 77 FR 60915, October 5, 2012.

82 See 40 CFR 52.1470(e) (“ EPA

- approved Nevada nonregulatory provisions and quasi

- regulatory measures ”).42

Air Quality to perform modeling, analyses, and demonstrations. These SIP

- approved 83 provisions generally authorize NDEP to conduct air quality modeling to predict the ambient effect s of NAAQS pollutants, including Pb , and to provide such modeling data to t he EPA upon request

.

With respect to Clark and Washoe Counties, under NRS 445B.500 (“Establishment and administration of program; contents of program; designation of air pollution control agency of county for purposes of federal act; powers and duties of local air pollution control board; notice of public hearings; delegation of authority to determine violations and levy administrative penalties; cities and smaller counties; regulation of certain electric plants prohibited” ), paragraph (1)(c), the applicab le district board of health, county board of health or board of county commissioners in counties with a population greater than 100,000 is designated as the air pollution control agency of the county for the purposes of state law and

the CAA insofar as it pertains to local programs. Such agencies are authorized to take all action s necessary to secure for the county the benefits of the CAA. Also, under NRS section 445B.500(1)(d), all of the powers and responsibilities provided for in NRS sections 445B.210, 4 45B.240 to 445B.470, inclusive, 445B.560, 445B.570, 445B.580, and 445B.640 are binding upon and inure to the benefit of local air pollution control authorities within their jurisdiction. Thus, the same types of authorities granted under State law to th e SE C and the D CNR are extended to the authorized local air pollution control agencies in the State of Nevada

. These provisions generally authorize both the Clark County Board of County Commissioners (through the Clark County DAQ ) and the Washoe County Distric t
Board of Health (through the Washoe County AQMD ) to conduct air quality modeling to predict the

ambient effect s of NAAQS pollutants, including Pb , and to provide such modeling data to the EPA upon request

.

NDEP NDEP currently does not have a federally approved PSD program in the Nevada SIP, but NDEP's PSD program incorporates by reference the federal PSD program in 40 CFR Part 52.21, including subsection (l) “Air quality models.” Additional m odeling requirements have also been submitted by Nevada and approved into the SIP. As state d in Nevada ’ s Pb Infrastructure Submittal , modeling is also part of

NDEP ’ s general NSR permitting program. Specifically, NAC 445B.311, section (1) requires an

environmental evaluation fo r new or modified stationary sources pursuant to NAC 445B.308 to 445B.314 and section (4) requires a dispersion analysis used to determine the location and estimated value of the highest concentration of each regulated air pollutant and for such an analysi s to include a dispersion model based on the applicable models, bases and other requirements specified in the

“ Guideline on Air Quality Models ” (i.e., 40 CFR part 51, Appendix W). This requirement applies to all stationary sources in Nevada that are in att ainment or unclassifiable areas, except in areas classified as Class IV, as per NAC 445B.308. These SIP

- approved 84 permitting regulations further support the

State ’ s section 110(a)(2)(K) demonstration with respect to sources under NDEP jurisdiction. 85

83 See 40 CFR 52.1470(c) (“E PA approved regulations”).

84 See 40 CFR 52.1470(c) (“EPA approved regulations”).

85 Although EPA has previously evaluated infrastructure SIPs addressing section 110(a)(2)(K) by reviewing SIP

- approved PSD provisions for compliance with EPA ’ s requirements for air quality models in 40 CFR 51.166(l ), we now propose to find that section 110(a)(2)(K) may be satisfied by a demonstration of authority to perform the following actions along with a

narrative explanation of how the provisions meet the requirements of this elemen t : (1) conduct air quality modeling to predict the effect on ambient air quality of any emissions of any air pollutant for which a NAAQS has been promulgated, and (2) provide such modeling data to the EPA Administrator upon request

. See 2013 In frastructure SIP Guidance at 55. To the extent the State has supported its section 110(a)(2)(K) demonstration by discussing SIP

- approved PSD and other permitting regulations that address air quality models, we have reviewed those provisions together with the relevant statutory authorities as part of our assessment of the State ’ s section 110(a)(2)(K) demonstration as a whole.43

Clark County Clark County ha s previously submitted the modeling and emissions reductions data with attainment demonstration SIP revisions, which rely on the county ’s capacity to model the effect of emissions on ambient air quality. For instance, see the fi nal rule redesignating the Las Vegas, Nevada carbon

monoxide nonattainment area to a ttainment 86 and the final rule redesignating the Las Vegas, Nevada 8

- hour ozone nonattainment area to attainment. 87 Each submittal required and included the relevant air qual ity modeling, and therefore demonstrates Clark County’s practice of conducting air quality modeling for attainment demonstration purposes.

Modeling is also part of Clark County’s SIP

- approved PSD permitting program. Specifically, Section

12.2 and Section 12.4 contain Clark County’s regulations to implement the requirements of the PSD program in part C, title I of the Act and EPA’s implementing regulations in 40 CFR 51.160

- 164 and 51.166. This program applies to large new and modified sources of criteria pollutants for which Clark County has been designated as attainment or unclassifiable and certain other (non

- criteria) pollutants subje ct to regulation under the CAA. Clark County Section 12.4 requires that each application for a PSD permit inclu de, among other things, t he air quality modeling and other source impact analys e s required by Section 12.2

. See Section 12.4, subsection 12.4.3.1(b). Section 12.2 , in turn, specifically requires that all estimates of ambient concentrations required under Section 12.2 be based on applicable air quality models, databases, and other requirements specified in 40 CFR Part 51, Appendix W (“Guideline on Air Quality Models”). See Section 12.2, subsection 12.2.11. Where an air quality model specified in Appendix W is inappropriate, the model may be modified or another model substituted, but only after obtaining EPA ’ s written approval

. Id

. These SIP

- approved PSD regulations further support the State ’ s section 110(a)(2)(K) demonstration with respect to sources under Clark County ’ s jurisdiction. 88

Washoe County Washoe County currently does not have a federally approved PSD program in the Nevada SIP, but Washoe County's PSD program incorporates by reference the federal PSD program in 40 CFR Part 52.21, including subsection (l) “Air quality models.” Additional m odeling requirements are also briefly

described in Washoe County AQR 030.023 (“Evaluation of Registration Application”) and 030.235 (“Requirements for Source Sampling and Testing”) , the latter being part of the Nevada SIP

. 89 Regulation 030.023 requires the Control Officer to review an Authority to Construct application and determine by approved modeling or other methods if the proposed control technology will meet regulatory requirements. Regulation 030.235 in dicates that the Control Officer may require a pollutant impact analysis, including but not limited to, source or receptor modeling. These SIP

- approved permitting regulations further support the State ’ s section 110(a)(2)(K) demonstration with respect to s ources under Washoe County ’ s jurisdiction.

Conclusion

Based on our review of the Nevada Pb Infrastructure Submittal, including the SIP

- approved regulations

referenced therein, and several general statutory provisions in the applicable Nevada SIP, we propo se to
conclude that the provisions discussed above provide the NDEP, Clark County, and Washoe County air agencies with the authority to (1) conduct air quality modeling to predict the effect on ambient air quality of any emissions of any air pollutant for which a NAAQS has been promulgated and (2) provide such modeling data to the EPA Administrator upon reques t. Accordingly, we propose to approve the

86 75 FR 59090, September 27, 2010

. 87 78 FR 149, January 8, 2013.

88 See 77 FR 64039, October 18, 2012 for EPA’s most recent final acti on on Clark County ’ s stationary source permit programs in Section 12.

89 See 40 CFR 52.1470(c) (“EPA approved regulations”).44

Nevada Pb Infrastructure Submittal as meet ing the requirements of section 110(a)(2)(K) for the 2008 Pb NAAQ S state wide

.



### CAA Section 110(a)(2)(L)

– Permitting fees

Section 110(a)(2)(L) requires that each SIP : require the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under the Act, a fe e sufficient to cover (i) the reasonable costs of reviewing and acting upon any application for such a permit, and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing

the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator’s approval of a fee program under title V of the Act.

Neva da’s response to this requirement The NDEP portion of Nevada’s Pb Infrastructure Submittal cites several state statutes, as well as older and newer state permitting regulations to address the permitting fees requirement of CAA section 110(a)(2)(L), includi ng:

 State statutes: NRS 445B.230 (“Powers and Duties of Department”), 445B.235 (“Additional powers of Department”), and 445B.300 (“Operating permit for source of air contaminant; notice and approval of proposed construction; administrative fees; failure of Commission or Department to act.”),

 Older regulations: 90 NAC 445.704, 445.706, 445.707, 445.712, and 445.716, and

 New regulations: 91 NAC 445B.319, 445B.331, 445B.344, 445B.3441, 445B.3443, 445B.3457, 445B.3473, 445B.3485, and 445B.3497.

The Clark County portion of the submittal refers to the fees authorized under Clark County AQR Section 18 (“Permit and Technical Fees”) 92 for sources subject to Title V of the CAA and states that it will continue to implement such source permit fee regulations consistent wi th CAA sections 501 thru 507. The Washoe County portion of the submittal cites to permitting fees authorized under Washoe County AQR 030.210 (“Issuance of Permits to Operate”) 93 and 030.310 (“Permit to Operate”). 94

Attachment A (“Resources”) of Nevada’s August 30, 2012 submittal also provides useful information in describing the sources, accounts, and outlays of money for various purposes, including those related to permitting.

EPA’s evaluation
As described in Attachment A of Nevada’s August 30, 2012 subm ittal, NRS 445B.590 (“Account for the Management of Air Quality: Creation and administration; use; interest; payment of claims”) established

90 These were removed from the Nevada SIP, as per 77 FR 59321, September 27, 2012.

91 These were added to the Nevada SIP, as per 77 FR 59321.

92 An old version of Clark County AQR Section 18 appears in the Nevada SIP (see 47 FR 26386, June 18, 1982). However, while the current Section 18 (last revised February 11, 2013) continues to address permit and technical service fees, the content of the reg ulation has been substantially revised and has not been submitted as a SIP revision.

93 Washoe Coun ty AQR 030.210 was approved at 46 FR 21758, April 14, 1981. However, the current version of this regulation was last revised on October 25, 1995 and includes additional language regarding proper fees for small sources or those with very small populations nearby.

94 Washoe County AQR 030.3 10 was approved at 46 FR 43141, August 27, 1981. However, the current version of this regulation was last revised on October 2 0, 1993 and indexes permit fees with the Federal Consumer Price Index, rather than a static fee per pound of emissions and hours of operation.45

the Account for the Management of Air Quality within the state’s General Fund. In turn, per page A

- 2 of

Attachment A:

NRS section 445B.300(2)(a) requires the State Environmental Commission (SEC) to provide by regulation for the issuance, renewal, modification, revocation, and suspension of operating permits, and to charge appropriate fees for their issuance in an amou nt sufficient to pay the expenses of administrating the statutory air pollution control program and any regulations adopted to implement that program.

The SEC adopted such a regulation in NAC 445B.327 that is a schedule of fees for various activities

incl uding fees for operating permits and permits to construct for both non

- PSD sources [e.g., NAC 445B.327(1)] and PSD sources [e.g., NAC 445B.327(2)] . Thus, the fees collected from various sources, including operating permit fees and one

- time (e.g., permit ap plication) fees placed into the Account for the Management of Air Quality, are used to cover the cost of reviewing and acting upon permit applications and implementing and enforcing the terms and conditions of operating permits.

For Clark and Washoe coun ties, as noted on page A

- 3 of Attachment A of Nevada’s August 30, 2012 submittal, “[t]he state laws establishing local air pollution control agencies in certain counties also provide for similar powers and responsibilities to those agencies as provided to the SEC and the NDEP, including the power and duty to charge appropriate permit fees. See NRS 445B.500(1)(d).” We find that these two counties have implemented this authority in adopting local regulations, including the following (based on the current vers ions of the regulations):

 Clark County AQR Section 12.1 and 12.4, relating to permits to construct: requires that minor source applications (per Section 12.1.3.3) and major source applications (per Section 12.4.3.1(e)(17) include applicable fees establishe d or assessed pursuant to Section 18. 95

 Clark County AQR Section 18 (“Permit and Technical Service Fees”), relating to permits to construct and operation permits.

 Washoe County AQR 030.210, relating to operating permits: “The Permit to Operate will be

issue d when the Control Officer determines... (d) the proper fees, as established by the District Board of Health, have been paid.”

 Washoe County AQR 030.305, relating to permits to construct: 96 “Plan review fees shall be charged for review of Authority to Constru ct applications. Fees for new, existing or modified sources shall be set by the District Board of Health....”

 Washoe County AQR 030.310, relating to operating permits: “...Permit to Operate fees are as set by the District Board of Health. The District Board of Health shall increase the permit fee rate each year by an amount equal to or greater than the Federal Consumer Price Index....”

In a broader context, the operating fee requirements of CAA section 110(a)(2)(L) have been superseded by EPA’s approval of the t itle V programs of NDEP, Clark County, and Washoe County (i.e., the entire state). 97 Each of these approved programs contains regulations providing for collection of the necessary permitting fees. See NAC section 445B.327; Clark County Board of County Commissioners Air Quality Regulations sections 19.7 [now implemented as section 12.5.2.6(h)] and 18.6; and Washoe County AQRs governing Air Quality Management sections 030.300 through 030.335, inclusive.

95 Clark County AQR Sections 12.1 and 12.4 were approved into the Nevada SIP. See 77 FR 64039, October 18, 2012.

96 Washoe Count y AQR 030.305 was approved at 46 FR 21758, April 14, 1981. However, the current version of this regulation was last revised on October 20, 1993 and its text was wholly revised.

97 66 FR 63188, December 5, 2001

.46

As such, we propose to find that the Nevada SIP and Nevada’s Pb Infrastructure SIP meet the requirements of CAA section 110(a)(2)(L) for the 2008 Pb NAAQS.



### CAA Section 110(a)(2)(M)

– Consultation/participation by affected local entities

Section 110(a)(2)( M) requires SIPs to “ provide for consultation and participation by local political subdivisions affected by the plan.”

EPA interprets this requirement as meaning more than just allowing for public input. The SIP must identify policies or procedures requi ring consultation and participation by local political subdivisions affected by the relevant implementation plan. The SIP must also identify the organizations responsible for implementing and enforcing air quality regulations, and any related agreements or memoranda of understanding among these organizations. See 40 CFR 51.240 (“General plan requirements”).

Nevada’s response to this requirement
The NDEP portion of Nevada’s Pb Infrastructure Submittal identifies a number of SIP provisions as providing a proc ess for public participation in the development of SIP revisions. These include SIP

approved statutory authorities of the SEC and DCNR to implement CAA programs (i.e., NRS 445B.220, 445B.235, 445B.500, etc), as discussed above for section 110(a)(2)(E), and SIP

- approved regulatory provisions for permit applications and operating permits that have largely been approved into the

Nevada SIP. 98 It also cites non

- SIP provisions as supporting CAA section 110(a)(2)(M), including a statutory declaration of public pol icy (i.e. NRS 445B.100), parts of the Nevada Administrative Procedure Act (NRS 233B) that create o pportunities for the public to review proposed regulations, and a regulation [NAC 4 45B.221 (“Adoption by reference and applicability of certain provisions of federal law and regulations”)] that incorporates the federal PSD requirements. Lastly and importantly, Attachment D of the August 30, 2012 portion of Nevada’s Pb Infrastructure SIP included a number of revisions to the state’s provisions for consultation i n the Nevada SIP.

The Clark County portion of the submittal notes that Clark County consults with stakeholder committees on policy decisions and technical issues, such as the Air Quality Technical Advisory Committee, which includes private sector and local governmental representatives. In addition, NRS 445B.503 requires Clark County to consult with the Southern Nevada Regional Planning Coalition (RPC) and Regional Transportation Commission (RTC).

The Washoe County portion of the submittal states that SIP revisions are adopted in a public hearing before the Washoe County DBOH and that Washoe County AQR 020.005 and an inter

- local agreement among the City of Reno, City of Sparks, and Washoe County 99 authorize participation by local political

subdivisions i n carrying out the CAA, noting that the inter

- local agreement requires that the Washoe County DBOH include one elected official from each of the three local political subdivisions.

EPA’s evaluation

NDEP Nevada’s August 30, 2012 submittal is the primary ba sis for our evaluation of Nevada’s consultation and participation provisions given that a) it substantially revised the prior Pb infrastructure submittal,

98 77 FR 59321, September 27, 2012

. 99 Interlocal Agreement Concerning the Washoe County District Health Department, 1993 version.47

and b) it included an Attachment D (Section 11, “Intergovernmental Consultation”), which has been

app roved into the Nevada SIP. 100

Attachment D of Nevada’s 2012 Submittal identifies the relevant federal statutes and regulations for consultation that tie to CAA sections 110(a)(2)(J) and 110(a)(2)(M), as discussed above in the opening paragraphs of this TSD’ s evaluation of these two infrastructure SIP elements. Section 110(a)(2)(J) refers to section 121, which specifically addresses three kinds of entities for three types of air quality plans (i.e., consultation with general purpose local governments, designa ted organizations of elected officials of local governments, and any FLM for transportation controls, air quality maintenance plans, and preconstruction review of direct sources of air pollution, including PSD). By contrast, section 110(a)(2)(M) refers onl y to “ local political s ubdivisions affected by the [SIP],” but takes a broader view (i.e., it does not refer to specific types of air quality plans within the SIP and refers to “participation” in addition to consultation). Thus, for our evaluation of 110(a )(2)(M) we looked to Nevada’s more general provisions for consultation and participation by local political subdivisions, such as the Clark County DAQ, Tahoe Regional Planning Agency, Washoe County AQMD, and respective incorporated cities and county and re gional organizations in each.

Attachment D describes the process for consultation for the following geographic areas relevant to the SIP: statewide, Clark County, Lake Tahoe Basin, and Washoe County. For each area, Attachment D identifies the applicable state and local provisions governing consultation and notification to affected entities, including for those parts of the SIP related to permitting new and modified major sources and transportation planning, as appropriate. By the very nature of delegating air program responsibilities to Clark County BCC and DAQ and Washoe County DBOH and AQMD and cooperating with the Tahoe Regional Planning Agency, while retaining SIP revision authority at the state level, Nevada has instilled a process for developing, imp lementing, and enforcing the SIP that relies upon the involvement of such local political subdivisions. Beyond these county and regional subdivisions, each of the three local jurisdictions (Clark County, Lake Tahoe Basin, and Washoe County) integrate furth er local political subdivisions in matters relating to the SIP. These include regional planning organizations; regional transportation organizations; and incorporated cities in Clark and Washoe counties, where the vast majority of the Nevada population res ides. In addition, the Nevada SIP (including the SIP

- approved NRS 445B.500 and NRS 445B.503) provides authority and functionality to the primary agencies in Clark and Washoe counties to engage local political subdivisions on air quality planning.

In addit ion, other SIP provisions support, but are not sufficient in themselves, Nevada’s consultation processes. These include NRS 445B.210 (“Powers of Commission”)

, NRS 445B.220 (“Additional powers of Commission”)

, and NRS 445B.235 (“Additional powers of Departm ent...”), which contain language indicating the Commission and Department “ may ” cooperate with local government

.

Thus, EPA is proposing to find that Attachment D addresses the requirement of section 110(a)(2)(M) to provide for consultation and participatio n by local political subdivisions affected by the SIP for the 2008 Pb NAAQS for the entire state.

100 77 FR 64737, October 23, 2012.