Jared Blumenfeld, Regional Administrator, EPA Region 9 signed the following proposed rule on September 30, 

2015, and we are submitting it for publication in the Federal Register (FR). While we have taken steps to ensure the 

accuracy of this Internet version of the proposed rule, it is not the official version of the proposed rule for purposes 

of public comment. Please refer to the official version in a forthcoming FR publication, which will appear on the 

Government Printing Office's FDsys website (http://fdsys.gpo.gov/fdsys/search/home.action) and on 

Regulations.gov (http://www.regulations.gov) in Docket No. EPA-R09-OAR-2014-0812

Billing Code: 6560-50-P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2014-0812; FRL-]

Partial Approval and Partial Disapproval of Air Quality State Implementation Plans; 

Nevada; Infrastructure Requirements for Ozone, NO2 and SO2

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is approving in part and disapproving in part State Implementation Plan 

(SIP) revisions submitted by the State of Nevada pursuant to the requirements of the Clean Air 

Act (CAA) for the 2008 ozone national ambient air quality standards (NAAQS), the 2010 

nitrogen dioxide (NO2) NAAQS and the 2010 sulfur dioxide (SO2) NAAQS. The CAA requires 

that each state adopt and submit a SIP for the implementation, maintenance, and enforcement of 

each NAAQS promulgated by the EPA, and that EPA act on such SIPs. Nevada has met most of 

the applicable requirements. Where EPA is disapproving, in part, Nevada’s SIP revisions, the 

deficiencies have already been addressed by a federal implementation plan (FIP). 

DATES: Effective Date: This final rule is effective on [insert date 30 days from the date of 

publication in the Federal Register].

ADDRESSES: EPA has established a docket for this action, identified by Docket ID Number 

EPA-R09-OAR-2014-0812. The index to the docket for this action is available electronically at 

http://www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San 
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

2

Francisco, California. While all documents in the docket are listed in the index, some 

information may be publicly available only at the hard copy location (e.g., copyrighted material), 

and some may not be publicly available in either location (e.g., confidential business information 

(CBI)). To inspect the hard copy materials, please schedule an appointment during normal 

business hours with the contact listed directly below.

FOR FURTHER INFORMATION CONTACT: Tom Kelly, Air Planning Office (AIR–2), 

U.S. Environmental Protection Agency, Region IX, (415) 972–3856, kelly.thomasp@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, the terms "we," "us," and 

"our" refer to EPA.

TABLE OF CONTENTS:

I. Background

II. EPA’s Response to Comments

III. Final Action

IV. Statutory and Executive Order Reviews

I. Background

Section 110(a)(1) of the CAA requires each state to submit to EPA, within three years (or 

such shorter period as the Administrator may prescribe) after the promulgation of a primary or 

secondary NAAQS or any revision thereof, a SIP that provides for the “implementation, 

maintenance, and enforcement” of such NAAQS. EPA refers to these specific submissions as 

"infrastructure" SIPs because they are intended to address basic structural SIP requirements for 

new or revised NAAQS.
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

3

EPA issued a revised NAAQS for ozone on March 28, 2010, for NO2 on February 9, 

2010, and for SO2 on June 22, 2010.

1,2,3 These NAAQS revisions triggered requirements for 

states to submit an infrastructure SIP to address the applicable requirements of section 110(a)(2) 

within three years. The Nevada Department of Environmental Protection (NDEP) has submitted 

several infrastructure SIP submittals in response to EPA's promulgation of these NAAQS, 

including:

Ozone

• The Nevada Division of Environmental Protection Portion of the Nevada State 

Implementation Plan for the 2008 Ozone NAAQS: Demonstration of Adequacy April 

10, 2013;

• State Implementation Plan Revision to Meet the Ozone Infrastructure SIP 

Requirements of the Clean Air Act § 110(a)(2), Clark County, Nevada, February,

2013;

• The Washoe County Portion of the Nevada State Implementation Plan for the 2008 

Ozone NAAQS: Demonstration of Adequacy, February 28, 2013. 

NO2

• NDEP letter to EPA, dated May 9, 2013 and Washoe County letter, dated April 26, 

2013, containing the Approved Minutes of the February 28, 2013 public hearing and 

the Certificate of Adoption; 

 

1 73 FR 16436. This final rule reduced the ozone NAAQS from 0.08 parts per million (ppm) to 0.075 ppm. 

2 75 FR 6474. This final rule revised the primary NO2 NAAQS from an annual arithmetic average to a one-hour NO2

NAAQS of 100 parts per billion (ppb) and left unchanged EPA’s secondary annual NO2 NAAQS. The form of the 

1-hour standard is the 3-year average of the 98th percentile of the yearly distribution of 1-hour daily maximum NO2

concentrations.

3 This final rule revoked EPA’s annual and 24-hour SO2 NAAQS and a 1-hour NAAQS of 75 ppb. The form of the 

1-hour standard is the 3-year average of the 99th percentile of the yearly distribution of 1-hour daily maximum SO2

concentrations.
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

4

• The Nevada Division of Environmental Protection Portion of the Nevada State 

Implementation Plan for the 2010 Nitrogen Dioxide Primary NAAQS: Demonstration 

of Adequacy and appendices, January 18, 2013;

• State Implementation Plan Revision to Meet the Nitrogen Dioxide Infrastructure SIP 

Requirements of the Clean Air Act § 110(a)(2), and attachments Clark County, 

Nevada, December, 2012;

• The Washoe County Portion of the Nevada State Implementation Plan to Meet the 

Nitrogen Dioxide Primary NAAQS; Final Submittal, March 15, 2013. 

SO2

• The Nevada Division of Environmental Protection Portion of the Nevada State 

Implementation Plan for the 2010 Sulfur Dioxide Primary NAAQS, and appendices, 

June 3, 2013;

• State Implementation Plan Revision to Meet the Sulfur Dioxide Infrastructure SIP 

Requirements of the Clean Air Act § 110(a)(2), and attachments Clark County, 

Nevada, May, 2013;

• The Washoe County Portion of the Nevada State Implementation Plan to Meet the 

Sulfur Dioxide Infrastructure SIP Requirements of Clean Air Act § 110(a)(2), and 

attachments, March 28, 2013.

We refer to these submittals collectively as “Nevada’s Infrastructure Submittals.”

On May 20, 2015 (80 FR 28893), EPA proposed to approve in part, and disapprove in 

part, these SIP revisions addressing the infrastructure requirements of CAA section 110(a)(1) 

and (2) for the 2008 ozone, the 2010 NO2, and the 2010 SO2 NAAQS. Except for the interstate 

transport elements of 110(a)(2)(D)(i)(I) for the 2008 ozone and 2010 SO2 NAAQS, we are taking 
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

5

final action on all the Nevada Infrastructure Submittals since they collectively address the 

applicable infrastructure SIP requirements. 

Nevada’s submittals also requested that EPA reclassify the Nevada Intrastate Air Quality 

Control Region from priority IA to priority III for SO2 emergency episodes and remove historic, 

outdated language at 40 CFR 52.1475 from the state’s approved SIP. Our Notice of Proposed 

Rulemaking included these proposed changes. We also proposed to define the term Nevada 

Intrastate Air Quality Control Region and proposed to reclassify the Las Vegas Intrastate Air 

Quality Control Region from priority IA to priority III for SO2 emergency episodes.

The rationale supporting EPA's actions is explained in our May 20, 2015 Notice of 

Proposed Rulemaking (proposed rule) and the associated technical support documents (TSDs)

and will not be restated here.4,5 The proposed rule and TSD are available online at 

http://www.regulations.gov, Docket ID number EPA–R09–OAR–2015–0812. 

II. EPA’s Response to Comments

The public comment period on EPA’s proposed rule opened on May 20, 2015, the date of 

its publication in the Federal Register, and closed on June 19, 2015. During this period, EPA 

received comments from an unidentified commenter, NDEP, and a single comment letter from 

the Sierra Club and Earthjustice. The comments are summarized below; full text of these 

comments is available in the docket to today’s final rule.6

 

4 80 FR 28893, May 20, 2015.

5

“Technical Support Document Evaluation of the Nevada Infrastructure SIP for 2008 Ozone, 2010 NO2 and 2010 

SO2” May 2015; “Nevada Pb Infrastructure SIP Technical Support Document, September 13, 2012; Technical 

Support Document: EPA Evaluation of Nevada Provisions for 1997 Ozone, 1997 PM2.5, and 2006 PM2.5 NAAQS 

for Section 110(a)(2)(A) through (C), D((i)(II) and (D)(ii), E(i) and (E(iii), (F) through (M), July 2012; and 

Technical Support Document: EPA Evaluation of NV Provisions for Section 110 (a)(2)(E)(ii)/Section 128 Conflict 

of Interest Requirements, July 2012. 

6 See document number EPA-R09-OAR-2015-0812-0074, 0076 and 0077 at http://www.regulations.gov under 

docket ID number EPA-R09-OAR-2014-0812.
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

6

A. Unidentified Commenter

Comment: 

The commenter supported the partial disapproval of the Nevada SIP and discussed the 

health benefits of minimizing criteria pollutants and maintaining low levels of nitrogen dioxide, 

sulfur dioxide and ozone. The commenter asserted that with stricter standards, clean renewable 

energy may become more popular. 

Response: 

EPA acknowledges the support for our action. We do wish to clarify that EPA’s partial 

approval and partial disapproval of elements of the Nevada SIP will not result in changes to air 

quality regulation in Nevada, as the specific deficiencies have already been addressed by the 

delegation of EPA’s prevention of significant deterioration of air quality (PSD) program to 

NDEP and Washoe County. The need for this action, however, did result from EPA’s lowering 

of its NAAQS for ozone (in 2008), nitrogen dioxide (in 2010) and sulfur dioxide (in 2010). 

B. NDEP Comments

NDEP Comment #1:

NDEP suggested that EPA revise and approve all proposed disapprovals in the proposed 

rulemaking. The commenter contended that the proposed disapproval of two elements, CAA 

section 110(a)(2)(C) and (D), were based on NDEP and Washoe County having a delegated PSD 

programs. The commenter further claimed that the proposed disapprovals stem from EPA’s 

interpretation that a delegated PSD program is not considered part of the applicable Nevada SIP. 

Next, NDEP cited Federal Register language from EPA’s approval and disapproval of a recent 

Nevada Infrastructure SIP, “the SIP, viewed broadly, thus includes both portions of the plan 

submitted by the State and approved by EPA as well as any FIP promulgated by EPA to 
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

7

substitute for a State plan disapproved by EPA or not submitted by a State.”

7 Then the 

commenter stated “the NDEP suggests that this broad interpretation of what constitutes Nevada’s 

applicable SIP is the appropriate interpretation... delegation is an acceptable method for 

implementing a PSD program and no penalties to the state apply if they choose that option.”

Response:

We disagree with NDEP’s suggestion that Nevada’s I-SIP Submittals should be approved 

for PSD-related infrastructure SIP requirements for the NDEP and Washoe County jurisdictions. 

We note that NDEP and Washoe County submitted similar comments in 2012 and 2013 with 

respect to EPA’s proposed rulemaking on infrastructure SIPs for the 1997 ozone, 1997 fine 

particulate matter (PM2.5), and 2006 PM2.5 NAAQS; and proposed rulemaking on infrastructure 

SIPs for the 2008 Pb NAAQS. Our response to NDEP’s comment largely reiterates our response 

to NDEP and Washoe County’s comments on delegated PSD FIP programs during our 2012 and 

2014 rulemakings on Nevada’s infrastructure SIPs.

8

The CAA requires each state to adopt and submit a plan which provides for 

implementation, maintenance, and enforcement of the NAAQS. See CAA section 110(a)(1). 

Section 110(a)(2) sets forth the content requirements for such plans, including the requirement 

for a permit program as required in part C ("Prevention of Significant Deterioration of Air 

Quality," or "PSD") of title I of the CAA. Such plans are referred to as state implementation 

plans or SIPs.

EPA's authority to promulgate a FIP derives from EPA's determination that a state has 

failed to submit a complete, required SIP submission or from EPA's disapproval of a state 

 

7 77 FR 64737 (October 23, 2012) Partial Approval and Partial Disapproval of Air Quality State Implementation 

Plans; Nevada; Infrastructure Requirements for Ozone and Fine Particulate Matter.

8 77 FR 64737, October 23, 2012; 79 FR 15697, March 21, 2014.
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

8

submission of a SIP or SIP revision. See CAA section 110(c)(1). The SIP, viewed broadly, thus 

includes both portions of the plan submitted by the state and approved by EPA as well as any FIP

promulgated by EPA to substitute for a state plan disapproved by EPA or not submitted by a 

state.9

In 1974, EPA disapproved each state's SIP with respect to PSD and promulgated a FIP as 

a substitute for the SIP deficiency ("PSD FIP").10 In 1975, EPA codified the PSD FIP in each 

state's subpart in 40 CFR part 52.11 In 1978 and 1980, EPA amended the PSD regulations 

following the Clean Air Act Amendments of 1977 and related court decisions and amended the 

codification of the PSD FIP in each state's subpart, including 40 CFR 52.1485, accordingly.12

Since then, EPA has approved the PSD SIP for the sources and geographic area that lie 

within the jurisdiction of Clark County Department of Air Quality (DAQ), and has delegated 

responsibility for conducting PSD review, as per the PSD FIP, to NDEP and Washoe County. 

Notwithstanding the delegation, however, the Nevada SIP remains deficient with respect to PSD 

for the geographic areas and stationary sources that lie within NDEP’s and Washoe County’s

jurisdictions. As such, EPA's disapproval of the infrastructure SIP submittals for those elements 

that require states to have a SIP that includes a PSD permit program, including CAA sections 

110(a)(2)(C), (D)(i)(II), (D)(ii), and (J), is appropriate because EPA disapproved the state's 

submitted plan as not adequately addressing PSD program requirements. To conclude otherwise 

would be inconsistent with the long-standing and current disapproval of the SIP for PSD for the 

applicable areas, with the statutory foundation upon which the PSD FIP is authorized, and with 

 

9 40 CFR 52.02(b).

10 39 FR 42510, December 5, 1974.

11 40 FR 25004, June 12, 1975, adding 40 CFR 52.1485 to Subpart DD – Nevada.

12 43 FR 26380, June 19, 1978 and 45 FR 52676, August 7, 1980.
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

9

the obligation under section 110(a) for each state to adopt and submit a plan for implementation, 

maintenance, and enforcement of the NAAQS that includes a PSD program. EPA's delegation of 

the PSD FIP is not the same as state adoption and submittal of state or district rules meeting PSD 

requirements and EPA’s approval thereof.

NDEP Comment #2:

NDEP requested clarification regarding EPA’s “proposed partial disapproval,” at 80 FR 

28898, column 3, “of the interstate pollution transport portion” of section 110(a)(2)(D)(i)(II) i.e.

prongs 1 and 2. The commenter noted that EPA has proposed approval of the transport analysis 

submitted for nitrogen dioxide, yet proposed no action on the transport analysis for ozone and 

sulfur dioxide. 

Response:

In section IV.A. Proposed Approvals and Partial Approvals of our proposal notice we 

accidentally identified prongs 1-2 as being under section 110(a)(2)(D)(i)(II), when in fact prongs 

1-2 are sub-elements of 110(a)(2)(D)(i)(I). However, a proposed partial approval, partial 

disapproval for 110(a)(2)(D)(i)(II) is correct as this sub-element relates to prongs 3 and 4 of 

110(a)(2)(D)(i). As our analysis makes clear in the TSD on pp. 21-22, EPA proposed a partial 

approval, partial disapproval for prong 3 under 110(a)(2)(D)(i)(II) because NDEP and Washoe 

County do not have SIP approved PSD programs. However, we acknowledge NDEP’s point that 

we proposed approval for prongs 1-2 for NO2, and proposed no action on 2008 ozone or 2010 

SO2 under 110(a)(2)(D)(i)(I). We thank NDEP for identifying this typographical error, and we 

have clarified it in the final rulemaking.

C. Sierra Club/Earthjustice Comments

Sierra Club/Earthjustice Comment #1:
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

10

Sierra Club/Earthjustice asserted that the plain language of section 110(a)(2)(A) of the 

CAA, and EPA regulations, at 40 CFR section 51.112, requires that SIPs contain emissions 

limits adequate to prohibit NAAQS exceedances in areas not designated nonattainment. The 

legislative history of the CAA, case law, EPA regulations such as 40 CFR 51.112(a), and EPA 

interpretations in rulemakings require the inclusion of enforceable emission limits in an 

infrastructure SIP to prevent NAAQS exceedances in areas not designated nonattainment. The 

commenter argued that the Nevada 2008 ozone infrastructure SIP submittal did not revise the 

existing ozone emission limits in response to the 2008 ozone NAAQS and failed to comport with 

asserted CAA requirements for SIPs to establish enforceable emission limits that are adequate to 

prohibit NAAQS exceedances in areas not designated nonattainment.

The commenter believed that the main objective of the infrastructure SIP process “is to 

ensure that all areas of the country meet the NAAQS,” and that nonattainment areas are 

addressed through nonattainment SIPs. The commenter maintained the NAAQS are the 

foundation for specific emission limitations for most large stationary sources, such as coal-fired 

power plants. The commenter stated its belief that, pursuant to section 107(a), the states have 

primary responsibility to maintain air quality through the controls and programs contained in the 

state’s infrastructure SIPs as required by section 110(a)(2). The commenter also argued that, on 

its face, the CAA requires infrastructure SIPs “to be adequate to prevent exceedances of the 

NAAQS,” as provided in section 110(a)(1), which requires states to adopt a plan for 

implementation, maintenance, and enforcement of the NAAQS, and the language in section 

110(a)(2)(A), which requires SIPs to include enforceable emissions limitations necessary to meet 

the requirements of the CAA and which the commenter claimed also should include the 

maintenance plan requirement. The commenter maintained the CAA definition of emission limit,
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

11

when combined with the provisions stated above, requires “enforceable emission limits on 

source emissions sufficient to ensure maintenance of the NAAQS.”

Response:

EPA disagrees that section 110 is clear “on its face” and must be interpreted in the 

manner suggested by Sierra Club/Earthjustice. As we have previously explained in response to 

the commenter’s similar comments on Virginia’s SO2 infrastructure SIP, section 110 is only one 

provision that is part of a complex structure governing implementation of the NAAQS program 

under the CAA, and it must be interpreted in the context of not only that structure, but in the 

context of the historical evolution of the Act.

13

EPA interprets infrastructure SIPs as more general planning SIPs, consistent with the 

CAA as understood in light of its history and structure. When Congress enacted the CAA in 

1970, it did not include provisions requiring states and the EPA to label areas as attainment or 

nonattainment. Rather, states were required to include all areas of the state in “air quality control 

regions” (AQCRs) and section 110 set forth the core substantive planning provisions for these 

AQCRs. At that time, Congress anticipated that states would be able to address air pollution 

quickly pursuant to the very general planning provisions in section 110 and could bring all areas 

into compliance with a new NAAQS within five years. Section 110(a)(2)(A)(i) specified that the 

section 110 plan provide for “attainment” of the NAAQS and section 110(a)(2)(B) specified that 

the plan must include “emission limitations, schedules, and timetables for compliance with such 

 

13 See Air Quality State Implementation Plans; Approvals and Promulgations: Virginia; Infrastructure Requirements 

for the 2010 Sulfur Dioxide National Ambient Air Quality Standards, 79 FR 17043 (March 27, 2014); Approval and 

Promulgation of Air Quality Implementation Plans; West Virginia; Infrastructure Requirements for the 2010 Sulfur 

Dioxide National Ambient Air Quality Standards, 79FR 62022 (October 16, 2014); and Final Approval of Illinois 

Infrastructure SIP Requirements for the 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS, 79 FR 62042 (October 16, 

2014).
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

12

limitations, and such other measures as may be necessary to insure attainment and maintenance 

[of the NAAQS].”

In 1977, Congress recognized that the existing structure was not sufficient and many 

areas were still violating the NAAQS. At that time, Congress for the first time added provisions 

requiring states and EPA to identify whether areas of a state were violating the NAAQS (i.e., 

were nonattainment) or were meeting the NAAQS (i.e., were attainment) and established specific 

planning requirements in section 172 for areas not meeting the NAAQS. In 1990, many areas 

still had air quality not meeting the NAAQS and Congress again amended the CAA and added 

yet another layer of more prescriptive planning requirements for each of the NAAQS. At that 

same time, Congress modified section 110 to remove references to the section 110 SIP providing 

for attainment, including removing pre-existing section 110(a)(2)(A) in its entirety and 

renumbering subparagraph (B) as section 110(a)(2)(A). Additionally, Congress replaced the 

clause “as may be necessary to insure attainment and maintenance [of the NAAQS]” with “as 

may be necessary or appropriate to meet the applicable requirements of this chapter.” Thus, the 

CAA has significantly evolved in the more than 40 years since it was originally enacted. While 

at one time section 110 of the CAA did provide the only detailed SIP planning provisions for 

states and specified that such plans must provide for attainment of the NAAQS, under the 

structure of the current CAA, section 110 is only the initial stepping-stone in the planning 

process for a specific NAAQS. More detailed, later-enacted provisions govern the substantive 

planning process, including planning for attainment of the NAAQS.

Thus, EPA asserts that section 110 of the CAA is only one provision that is part of the 

complicated structure governing implementation of the NAAQS program under the CAA, as 

amended in 1990, and it must be interpreted in the context of that structure and the historical 
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

13

evolution of that structure. In light of the revisions to section 110 since 1970 and the laterpromulgated and more specific planning requirements of the CAA, EPA reasonably interprets 

the requirement in section 110(a)(2)(A) of the CAA that the plan provide for “implementation, 

maintenance and enforcement” to mean that the SIP must contain enforceable emission limits 

that will aid in attaining and/or maintaining the NAAQS. EPA has interpreted the requirement 

for emission limitations in section 110 to mean that the state may rely on measures already in 

place to address the pollutant at issue or any new control measures that the state may choose to 

submit. Finally, as EPA stated in the Infrastructure SIP Guidance which specifically provides 

guidance to states in addressing the 2010 SO2 NAAQS, “[t]he conceptual purpose of an 

infrastructure SIP submission is to assure that the air agency's SIP contains the necessary 

structural requirements for the new or revised NAAQS, whether by establishing that the SIP 

already contains the necessary provisions, by making a substantive SIP revision to update the 

SIP, or both.”14, 15

EPA addressed the adequacy of Nevada’s infrastructure SIP for 110(a)(2)(A) purposes in

the TSD accompanying the May 20, 2014 Notice of Proposed Rulemaking and explained that the 

SIP includes enforceable emission limitations and other control measures “necessary or

appropriate to meet the requirements of this chapter.”16 These include permit requirements for 

 

14 See pages 1 and 2 of Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act 

Sections 110(a)(1) and 110(a)(2), September 2013.

15 Thus, EPA disagrees with Sierra Club's general assertion that the main objective of infrastructure SIPs is to ensure 

all areas of the country meet the NAAQS, as we believe the infrastructure SIP process is the opportunity to review 

the structural requirements of a state's air program. EPA, however, does agree with Sierra Club that the NAAQS are 

the foundation upon which emission limitations are set, but we believe, as explained in responses to other

comments, that these emission limitations are generally set in the attainment planning process envisioned by part D 

of title I of the CAA, including, but not limited to, CAA sections 172 and 191-192

16 The TSD for this action (“Technical Support Document Evaluation of the Nevada Infrastructure SIP for 2008 

Ozone, 2010 NO2 and 2010 SO2” May 2015) is available online at www.regulations.gov, Docket ID Number EPAR09-OAR-2014-0812-0038.
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

14

major sources in attainment and nonattainment areas and general permits for minor stationary 

sources.17 As discussed in the TSD for this rulemaking, EPA finds the provisions for ozone 

emission limitations and measures adequately address section 110(a)(2)(A) to aid in attaining 

and/or maintaining the NAAQS and finds that the Clark County portion of the Nevada SIP has 

demonstrated it has the necessary tools to implement and enforce the NAAQS.

Sierra Club/Earthjustice Comment #2:

The commenter claimed that two excerpts from the legislative history of the 1970 CAA 

support an interpretation that SIP revisions under CAA section 110 must include emissions 

limitations sufficient to show maintenance of the NAAQS in all areas of Nevada. The 

commenter also claimed that the legislative history of the CAA supports the interpretation that 

infrastructure SIPs under section 110(a)(2) must include enforceable emission limitations, citing 

the Senate Committee Report and the subsequent Senate Conference Report accompanying the 

1970 CAA.

Response:

EPA disagrees with the commenters claim. As provided in the previous response (Section 

C, response to Sierra Club/Earthjustice Comment #1), the CAA, as enacted in 1970, including its 

legislative history, cannot be interpreted in isolation from the later amendments that refined that 

structure and deleted relevant language from section 110 concerning demonstrating attainment. 

In any event, the two excerpts of legislative history the commenter cites provide that states 

should include enforceable emission limits in their SIPs. As provided in the response to Sierra 

 

17 See Table 3 of “Technical Support Document Evaluation of the Nevada Infrastructure SIP for 2008 Ozone, 2010 

NO2 and 2010 SO2” May 2015.
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

15

Club/Earthjustice Comment #6 below, the TSD for the proposed rule explains why the Nevada 

SIP includes enforceable emissions limitations for ozone for the relevant area.

Sierra Club/Earthjustice Comment #3: 

The commenter referenced two prior EPA rulemaking actions where EPA disapproved or 

proposed to disapprove SIPs and claimed they were actions in which EPA relied on section 

110(a)(2)(A) and 40 CFR 51.112 to reject infrastructure SIPs. The commenter directed attention 

to a 2006 partial approval and partial disapproval of revisions to Missouri's existing plan 

addressing the SO2 NAAQS. In that action, EPA relied on section 110(a)(2)(A) for disapproving 

an emission limit revision on the basis that the State failed to demonstrate the SIP revision was 

sufficient to ensure maintenance of the SO2 NAAQS; EPA cited to 40 CFR 51.112 as requiring 

that a plan demonstrates the rules in a SIP are adequate to attain the NAAQS. Second, the 

commenter cited a 2013 disapproval of a revision to the SO2 SIP for Indiana, where the revision 

removed an emission limit that applied to a specific emissions source at a facility in the State. 

See 78 FR 17157, 17158, (March 20, 2013) (proposed rule on Indiana SO2 SIP) and 78 FR 

78720, 78721 (December 27, 2013) (final rule on Indiana SO2 SIP). The commenter believed 

that in the proposed disapproval, EPA relied on 40 CFR 51.112(a) in proposing to reject the 

revision, stating that the State had not demonstrated that the emission limit was “redundant, 

unnecessary, or that its removal would not result in or allow an increase in actual SO2

emissions.” The commenter contended that EPA stated in that proposed disapproval that the 

State had not demonstrated that removal of the limit would not “affect the validity of the 

emission rates used in the existing attainment demonstration” and asserted that outside of startup, 

shutdown, and malfunction requirements, EPA’s 2013 I-SIP guidance did not discuss 

postponement of any I-SIP requirements.
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

16

Response:

EPA does not agree that the two prior actions referenced by Sierra Club/Earthjustice

establish how EPA reviews infrastructure SIPs. It is clear from both the final Missouri rule and 

the proposed and final Indiana rule that EPA was not reviewing initial infrastructure SIP 

submissions under section 110 of the CAA, but rather reviewing revisions that would make an 

already approved SIP designed to demonstrate attainment of the NAAQS less stringent. EPA's 

partial approval and partial disapproval of revisions to restrictions on emissions of sulfur 

compounds for the Missouri SIP in 71 FR 12623 addressed a control strategy SIP and not an 

infrastructure SIP. The Indiana action provides even less support for the commenter's position. 

78 FR 78720. The review in that rule was of a completely different requirement than the section 

110(a)(2)(A) SIP. Rather, in that case, the State had an approved SO2 attainment plan and was 

seeking to remove provisions from the SIP that it relied on as part of the modeled attainment 

demonstration. EPA proposed that the State had failed to demonstrate under section 110(l) of the 

CAA why the SIP revision would not result in increased SO2 emissions and thus interfere with 

attainment of the NAAQS. See 78 FR 17157. Nothing in that proposed or final rulemaking 

addresses the necessary content of the initial infrastructure SIP for a new or revised NAAQS. 

Rather, it is simply applying the clear statutory requirement that a state must demonstrate why a 

revision to an approved attainment plan will not interfere with attainment of the NAAQS. The 

commenter includes a footnote explaining that EPA’s infrastructure SIP guidance inappropriately 

postpones start-up, shutdown, and malfunction (SSM) requirements, offering no support for 

departing from the plain text of EPA’s regulations and past practices. 

The guidance states, “two elements that could not be governed by the 3-year submission 

deadline of section 110(a)(1)... the following elements are considered by the EPA to be outside 
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

17

the scope of infrastructure SIP actions: (1) section 110(a)(2)(C) to the extent that it refers to 

permit programs (known as “nonattainment new source review”) under part D; and (2) section 

110(a)(2)(I) in its entirety, which addresses SIP revisions for nonattainment areas. Both these 

elements pertain to SIP revisions that collectively are referred to as a nonattainment SIP or an 

attainment plan, which would be due by the dates statutorily prescribed under subparts 2 through 

5 under part D, extending as far as 10 years following area designations for some elements. 

Because the CAA directs states to submit these plan elements on a separate schedule, the EPA 

does not believe it is necessary for states to include these elements in the infrastructure SIP 

submission due 3 years after adoption or revision of a NAAQS.”

As discussed in detail in the TSD and NPR, EPA finds the Nevada SIP meets the 

appropriate and relevant structural requirements of section 110(a)(2) of the CAA that will aid in 

attaining and/or maintaining the NAAQS and that the State demonstrated that it has the 

necessary tools to implement and enforce a NAAQS.18

Sierra Club/Earthjustice Comment #4:

The commenter discussed several cases applying the CAA which they claimed support 

their contention that courts have been clear that section 110(a)(2)(A) requires enforceable 

emissions limits in infrastructure SIPs to prevent exceedances of the NAAQS. The commenter

cited to language in Train v. NRDC, 421 U.S. 60, 78 (1975), addressing the requirement for 

“emission limitations” and stating that emission limitations “are specific rules to which operators 

of pollution sources are subject, and which, if enforced, should result in ambient air which meet 

the national standards.” The commenter also cited to Pennsylvania Dept. of Envtl. Resources v. 

 

18 EPA will take a separate action on CAA (a)(2)(D)(i)(I) Nevada ozone infrastructure SIP (i.e. the Good Neighbor 

SIP provisions). 
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

18

EPA, 932 F.2d 269, 272 (3d Cir. 1991) for the proposition that the CAA directs EPA to withhold 

approval of a SIP where it does not ensure maintenance of the NAAQS, and to Mision Industrial, 

Inc. v. EPA, 547 F.2d 123, 129 (1st Cir. 1976), which quoted section 110(a)(2)(B) of the CAA of 

1970. The commenter contends that the 1990 Amendments do not alter how courts have 

interpreted the requirements of section 110, quoting Alaska Dept. of Envtl. Conservation v. EPA, 

540 U.S. 461, 470 (2004), which in turn quoted section 110(a)(2)(A) of the CAA and also stated 

that “SIPs must include certain measures Congress specified” to ensure attainment of the 

NAAQS. The commenter also quotes several additional opinions that purportedly stand for 

similar propositions: Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1180 (9th Cir. 2012) 

(“The Clean Air Act directs states to develop implementation plans—SIPs—that `assure' 

attainment and maintenance of [NAAQS] through enforceable emissions limitations”); Hall v. 

EPA, 273 F.3d 1146, 1153 (9th Cir. 2001) (“Each State must submit a [SIP] that specif[ies] the 

manner in which [NAAQS] will be achieved and maintained within each air quality control 

region in the State”); Conn. Fund for Env't, Inc. v. EPA, 696 F.2d 169, 172 (D.C. Cir. 1982) 

(CAA requires SIPs to contain “measures necessary to ensure attainment and maintenance of 

NAAQS”); Mich. Dept. of Envtl. Quality v. Browner, 230 F.3d 181 (6th Cir. 2000) (EPA may 

not approve a SIP revision that does not demonstrate how the rules would not interfere with 

attainment and maintenance of the NAAQS). The commenter also cites Comm. For a Better

Arvin v. EPA, No.11-73924, at*3-4 (9th Cir. May 20, 2015) as supporting their contention that 

the plain language of section 110(a)(2)(A) requires infrastructure SIPs to include enforceable 

emissions limits on sources sufficient to ensure maintenance of the NAAQS.

Response: 
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

19

The EPA disagrees with this comment. None of the cited cases hold that section 

110(a)(2)(A) unambiguously requires infrastructure SIPs to include detailed plans providing for 

attainment and maintenance of the NAAQS in all areas of the state, nor do they shed light on 

how section 110(a)(2)(A) may reasonably be interpreted. With the exception of Train, none of 

the cases the commenter cites concerned the interpretation of CAA section 110(a)(2)(A) (or 

section 110(a)(2)(B) of the pre-1990 Act). Rather, the courts reference section 110(a)(2)(A) (or 

section 110(a)(2)(B) of the pre-1990 CAA) in the background sections of decisions in the context 

of either (1) a challenge to an EPA action on revisions to a SIP that were required and approved 

as meeting other provisions of the CAA, or (2) an enforcement action.

In Train, 421 U.S. 60, the Court was addressing a state revision to an attainment plan 

submission made pursuant to section 110 of the CAA, the sole statutory provision at that time 

regulating such submissions. The issue in that case concerned whether changes to requirements 

occurring before attainment deadlines were variances (which would be addressed pursuant to the 

provision governing SIP revisions) or “postponements” (which would have to meet the 

prescriptive criteria of section 110(f) of the CAA of 1970). The Court concluded that EPA 

reasonably interpreted section 110(f) not to restrict a state's choice of the mix of control 

measures needed to attain the NAAQS and that revisions to SIPs that would not impact 

attainment of the NAAQS by the attainment date were not subject to the limits of section 110(f). 

The issue was not whether a section 110 SIP must provide for attainment or whether emissions 

limits are needed as part of the SIP; rather the issue was which statutory provision governed 

when the state wanted to revise the emission limits in its SIP if such revision would not impact 

attainment or maintenance of the NAAQS. To the extent the holding in the case has any bearing 

on how section 110(a)(2)(A) might be interpreted, it is important to realize that in 1975, when 
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

20

the opinion was issued, section 110(a)(2)(B) (the predecessor to section 110(a)(2)(A)) expressly 

referenced the requirement to attain the NAAQS, a reference that was removed in 1990.

The decision in Pennsylvania Dept. of Envtl. Resources was also decided based on the 

pre-1990 provision of the CAA. At issue was whether EPA properly rejected a revision to an 

approved plan where the inventories relied on by the state for the updated submission had gaps. 

The Court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of EPA's disapproval, 

but did not provide any interpretation of that provision. Yet, even if the Court had interpreted 

that provision, EPA notes that it was modified by Congress in 1990; thus, this decision has little 

bearing on the issue here.

At issue in Mision Industrial, 547 F.2d 123, was the definition of “emissions limitation,” 

not whether section 110 requires the state to demonstrate how all areas of the state will attain and 

maintain the NAAQS as part of their infrastructure SIPs. The language from the opinion the 

commenter quotes does not interpret but rather merely describes section 110(a)(2)(A). Sierra 

Club/Earthjustice does not raise any concerns about whether the measures relied on by the 

Commonwealth in the infrastructure SIP are “emissions limitations” and the decision in this case 

has no bearing here.

In Mont. Sulphur & Chem. Co., 666 F.3d 1174, the Court was reviewing a federal 

implementation plan (FIP) that EPA promulgated after a long history of the state failing to 

submit an adequate SIP in response to EPA's finding under section 110(k)(5) that the previously 

approved SIP was substantially inadequate to attain or maintain the NAAQS, which triggered the 

state's duty to submit a new SIP to show how it would remedy that deficiency and attain the 

NAAQS. The Court cited generally to sections 107 and 110(a)(2)(A) of the CAA for the 

proposition that SIPs should assure attainment and maintenance of NAAQS through emission 
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

21

limitations, but this language was not part of the Court's holding in the case, which focused 

instead on whether EPA's finding of SIP inadequacy, disapproval of the state's responsive 

attainment demonstration, and adoption of a remedial FIP were lawful. The commenter suggests 

that Alaska Dept. of Envtl. Conservation, 540 U.S. 461, stands for the proposition that the 1990 

CAA Amendments do not alter how courts interpret section 110. This claim is inaccurate. 

Rather, the Court quoted section 110(a)(2)(A), which, as noted previously, differs from the pre1990 version of that provision and the court makes no mention of the changed language. 

Furthermore, Sierra Club/Earthjustice also quotes the Court's statement that “SIPs must include 

certain measures Congress specified,” but that statement specifically referenced the requirement 

in section 110(a)(2)(C), which requires an enforcement program and a program for the regulation 

of the modification and construction of new sources. Notably, at issue in that case was the state's 

“new source” permitting program, not its infrastructure SIP.

Two of the cases Sierra Club/Earthjustice cites, Mich. Dept. of Envtl. Quality, 230 F.3d 

181, and Hall, 273 F.3d 1146, interpret CAA section 110(l), the provision governing “revisions” 

to plans, and not the initial plan submission requirement under section 110(a)(2) for a new or 

revised NAAQS, such as the infrastructure SIP at issue in this instance. In those cases, the courts 

cited to section 110(a)(2)(A) solely for the purpose of providing a brief background of the CAA.

In Conn. Fund for Env't, Inc. v. EPA, the Second Circuit was reviewing EPA action on a 

control measure SIP provision that adjusted the percent of sulfur permissible in fuel oil. 696 F.2d 

169 (2d. Cir. 1982). The Second Circuit denied a petition for review concerning whether EPA 

needed to evaluate effects of the SIP revision on one pollutant or effects of changes on all 

possible pollutants. The Second Circuit did not address required measures for infrastructure SIPs 

and nothing in the opinion addressed whether infrastructure SIPs needed to contain measures to 
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

22

ensure attainment and maintenance of the NAAQS. The court did note, however, that, “the need 

for flexibility in the administration of the [CAA] . . . should not be underestimated,” and 

highlighted the court’s past practice of being “careful to defer to EPA’s choice of methods to 

carry out its ‘difficult and complex job’ as long as that choice is reasonable and consistent with 

the Act.” Id. at 173–74 (quoting Conn. Fund for the Env’t v. EPA, 672 F.2d 998, 1006 (2d Cir. 

1982). Here, section 110(a)(2)(A) is reasonably interpreted to require states to submit SIPs that 

reflect the first step in their planning for attaining and maintaining a new or revised NAAQS and 

that they contain enforceable control measures and a demonstration that the state has the 

available tools and authority to develop and implement plans to attain and maintain the NAAQS.

Finally, in Comm. for a Better Arvin v. EPA, the Petitioner challenged California’s plans 

to improve air quality in the San Joaquin Valley. At issue was whether EPA erred in approving 

the state’s SIP to comply with the NAAQS under section 109 concerning ozone and fine 

particulate matter. The court held that by approving the state’s plans, even though the plans did 

not include the state-adopted mobile emissions standards on which those plans rely to achieve 

their emissions reductions goals, EPA violated the CAA. However, the court found that EPA did 

not violate the CAA by not requiring inclusion of other state mechanisms in its plans, and that 

other control measures approved by EPA are enforceable commitments as the CAA requires. 

While the court cited to section 110(a)(2)(A) for the proposition that SIPs generally should 

assure attainment and maintenance of NAAQS through emission limitations, such language was 

not dispositive as to whether or not infrastructure SIPs specifically must include enforceable 

limits on sources sufficient to maintain the NAAQS. To the contrary, the CAA provides states 

and EPA with other tools to address concerns that arise with respect to purported violations of 

the NAAQS in a designated attainment area, such as the authority to redesignate areas pursuant 
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

23

to section 107(d)(3), the authority to issue a “SIP Call” pursuant to section 110(k)(5), or the 

general authority to approve SIP revisions that can address violations of the NAAQS through 

other appropriate measures.

Sierra Club/Earthjustice Comment #5: 

The commenter cited to 40 CFR 51.112(a), providing that “[e]ach plan must demonstrate 

that the measures, rules and regulations contained in it are adequate to provide for the timely 

attainment and maintenance of the [NAAQS]” and asserted that this regulation requires all SIPs 

to include emissions limits necessary to ensure attainment of the NAAQS. The commenter stated 

their belief that “[a]lthough these regulations were developed before the Clean Air Act separated 

infrastructure SIPs from nonattainment SIPs—a process that began with the 1977 amendments 

and was completed by the 1990 amendments—the regulations apply to I-SIPs.” Finally, the 

commenter stated that EPA has not changed the regulation since 1990, and that in the preamble 

to the final rule promulgating 40 C.F.R. § 51.112, EPA expressly identified that its new 

regulations were not implementing Subpart D. See Air Quality Implementation Plans; 

Restructuring SIP Preparation Regulations, 51 Fed. Reg. 40,656, 40,656 (Nov. 7, 1986) (“It is 

beyond the scope of th[is] rulemaking to address the provisions of Part D of the Act . . . .”). The 

commenter thus concludes that 40 C.F.R.§ 51.112 was intended to apply to infrastructure SIPs.

Response:

The commenter’s reliance on 40 CFR 51.112 to support its argument that infrastructure 

SIPs must contain emission limits “adequate to prohibit NAAQS exceedances” and adequate or 

sufficient to ensure the maintenance of the NAAQS is not supported. As an initial matter, EPA 

notes and the commenter recognizes this regulatory provision was initially promulgated and 

“restructured and consolidated” prior to the CAA Amendments of 1990, in which Congress 
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

24

removed all references to “attainment” in section 110(a)(2)(A). And, it is clear on its face that 40 

CFR 51.112 applies to plans specifically designed to attain the NAAQS. EPA interprets these 

provisions to apply when states are developing “control strategy” SIPs such as the detailed 

attainment and maintenance plans required under other provisions of the CAA, as amended in 

1977 and again in 1990, such as sections 175A and 191–192. The commenter suggests that these 

provisions must apply to section 110 SIPs because in the preamble to EPA's action “restructuring 

and consolidating” provisions in part 51, EPA stated that the new attainment demonstration 

provisions in the 1977 Amendments to the CAA were “beyond the scope” of the rulemaking. It 

is important to note, however, that EPA's action in 1986 was not to establish new substantive 

planning requirements, but rather was meant merely to consolidate and restructure provisions 

that had previously been promulgated. EPA noted that it had already issued guidance addressing 

the new “Part D” attainment planning obligations. Also, as to maintenance regulations, EPA 

expressly stated that it was not making any revisions other than to re-number those provisions. 

51 FR at 40657.

Although EPA was explicit that it was not establishing requirements interpreting the 

provisions of new “Part D” of the CAA, it is clear that the regulations being restructured and 

consolidated were intended to address control strategy plans. In the preamble, EPA clearly stated 

that 40 CFR 51.112 was replacing 40 CFR 51.13 (“Control strategy: SOX and PM (portion)”), 

51.14 (“Control strategy: CO, HC, OX and NO2 (portion)”), 51.80 (“Demonstration of 

attainment: Pb (portion)”), and 51.82 (“Air quality data (portion)”). Id. at 40660. Thus, the 

present-day 40 CFR 51.112 contains consolidated provisions that are focused on control strategy 

SIPs, and the infrastructure SIP is not such a plan.

Sierra Club/Earthjustice Comment #6:
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

25

Citing section 110(a)(2)(A) of the CAA, the commenter contends that EPA failed to 

meaningfully evaluate whether the emissions limitations and other control measures are adequate 

to ensure attainment and maintenance of the NAAQS in EPA’s proposed approval of the Clark 

County Infrastructure SIP. The commenter further contends that “nearly all of the legal 

authorities...pertain only to new or additional sources...(and) would do nothing to reduce 

existing sources.” 

Response:

EPA believes that section 110(a)(2)(A) of the CAA is reasonably interpreted to require 

states to submit infrastructure SIPs that reflect the first step in their planning for attainment and 

maintenance of a new or revised NAAQS. These SIP revisions should contain a demonstration 

that the state has the available tools and authority to develop and implement plans to attain and 

maintain the NAAQS and show that the SIP has enforceable control measures. In light of the 

structure of the CAA, EPA's long-standing position regarding infrastructure SIPs is that they are 

general planning SIPs to ensure that the state has adequate resources and authority to implement 

a NAAQS in general throughout the state and not detailed attainment and maintenance plans for 

each individual area of the state. As mentioned above, EPA has interpreted this to mean, with 

regard to the requirement for emission limitations, that states may rely on measures already in 

place to address the pollutant at issue or any new control measures that the state may choose to 

submit.

As stated in response to Sierra Club/Earthjustice’s Comment #5, section 110 of the CAA 

is merely one provision within the complex, post-1990 regulatory structure governing 

implementation of the NAAQS, and must be interpreted in the context of that regulatory 

structure as well as the Act’s historical evolution. In light of the revisions to section 110 since 
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

26

1970 and the later-promulgated and more specific planning requirements of the CAA, EPA 

reasonably interprets the requirement in section 110(a)(2)(A) of the CAA that the plan provide 

for “implementation, maintenance and enforcement” to mean that the SIP must contain 

enforceable emission limits that will aid in attaining and/or maintaining the NAAQS, and that the 

state demonstrate that it has the necessary tools to implement and enforce a NAAQS (e.g., 

adequate state personnel and an enforcement program). As discussed above, EPA has interpreted 

the requirement for emission limitations in section 110 to mean that the state may rely on 

measures already in place to address the pollutant at issue or any new control measures that the 

state may choose to submit. Finally, as EPA stated in the Infrastructure SIP Guidance which 

specifically provides guidance to states in addressing the 2010 SO2 NAAQS, “[t]he conceptual 

purpose of an infrastructure SIP submission is to assure that the air agency's SIP contains the 

necessary structural requirements for the new or revised NAAQS, whether by establishing that 

the SIP already contains the necessary provisions, by making a substantive SIP revision to 

update the SIP, or both.”19

EPA believes that the proper inquiry is whether Nevada, including Clark County, has met 

the basic structural SIP requirements appropriate at the point in time EPA is acting upon the 

infrastructure submittal. Emissions limitations and other control measures needed to attain the 

NAAQS in areas designated nonattainment for that NAAQS are due on a different schedule from 

the section 110 infrastructure elements. A state, like Nevada, may reference pre-existing SIP 

emission limits or other rules contained in part D plans for previous NAAQS in an infrastructure 

SIP submission. For example, NDEP and Clark County submitted a list of existing emission 

 

19 Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 

110(a)(2), September 2013 at page 2.
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

27

reduction measures in the SIP that control emissions of ozone, which are included in the 

discussion of Element A of the TSD supporting the NPRM. These provisions have the ability to 

reduce ozone overall. We mention both NDEP and Clark County because they both regulate 

facilities within Clark County. As mentioned in the TSD supporting the NPRM, NDEP has the 

sole authority to regulate facilities that generate energy from steam boilers burning fossil fuels.

Fuel combustion is the second largest source of NOx emissions (16%) after (primarily EPA

regulated) mobile sources (82%). Some of the largest stationary source emitters of NOx in Clark 

County, such as the Reid Gardner Generating Station, are regulated by NDEP. 

While NOx emissions are regulated at the federal, state and local level, the commenter 

specifically raised concerns with Clark County’s legal authorities. EPA disagrees that Clark 

County legal authorities only pertain to new or additional sources. The County’s permitting 

programs and regulatory controls also apply to existing facilities. We acknowledge that the Clark 

County portion of the ozone SIP submittal does not propose new regulations for the Nevada SIP 

that would reduce emissions from existing sources, such as those commonly included in an 

attainment SIP, but that does not mean that existing sources are not regulated at the state and 

local level. 

EPA believes it is not appropriate to bypass the attainment planning process by imposing 

separate attainment planning process requirements outside the attainment planning process and 

into the infrastructure SIP process. Such actions would be disruptive and premature absent 

exceptional circumstances and would interfere with a state's planning process. See In the Matter 

of EME Homer City Generation LP and First Energy Generation Corp., Order on Petitions 

Numbers III-2012-06, III-2012-07, and III2013-01 (July 30, 2014) (hereafter, Homer 

City/Mansfield Order) at 10-19 (finding that the Pennsylvania SIP did not require imposition of 
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

28

SO2 emission limits on sources independent of the part D attainment planning process 

contemplated by the CAA). EPA believes that the history of the CAA, and intent of Congress for 

the CAA as described above, demonstrate clearly that it is within the section 172 and general 

part D attainment planning process that Nevada must include additional limits on ozone 

precursor emissions in order to demonstrate future attainment, where needed, for any areas in 

Nevada or other states that may be designated nonattainment in the future, in order to reach 

attainment of the 2008 ozone NAAQS.

EPA does not agree with the commenter's reliance on 40 CFR 51.112 to support its 

argument that infrastructure SIPs must contain emission limits adequate to provide for timely 

attainment and maintenance of the standard. As explained previously in response to Sierra 

Club/Earthjustice Comment #5, EPA notes this regulatory provision clearly on its face applies to 

plans specifically designed to attain the NAAQS and not to infrastructure SIPs which show the 

states have in place structural requirements necessary to implement the NAAQS. Therefore, EPA 

finds 40 CFR 51.112 inapplicable to its analysis of the Nevada ozone infrastructure SIP.

Sierra Club/Earthjustice Comment #7:

The commenter expressed concern that the design values for the Clark County air quality 

monitors exceeded the ozone NAAQS, yet the area remained designated 

attainment/unclassifiable. The commenter also referenced a Sierra Club petition, denied by EPA,

to redesignate Clark County and other areas to nonattainment20 and asserted that “design values 

 

20 Petition to the Administrator of the U.S. Environmental Protection Agency to Redesignate as Nonattainment 57 

Areas with 2012 Design Values Violating the 2008 8-Hour National Ambient Air Quality Standards for Ozone 

(Docket: EPA-HQ-OAR-2014-0563, and included in the docket for this rulemaking)
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

29

for monitors in Clark County have exceeded the 2008 0.075 ppm standard for every three-year 

period since 2001-2003 with the lone exception of 2009-2011.” 

Response: 

EPA’s decision not to redesignate the areas identified in the Sierra Club’s petition 

involved many factors, which we discuss in the next paragraph, including: the role of the 

declining national NOx and VOC emissions, particularly from mobile sources, which are 

primarily regulated by EPA; the limited planning requirements associated with marginal 

nonattainment areas; the development of collaborative strategies to bring newly violating areas 

back into compliance as soon as possible; and the fluctuation of ozone levels with varying

weather conditions.21 We will discuss the factors mentioned in EPA’s response to the Sierra 

Club’s redesignation petition (for 57 areas in the U.S.), specifically for Clark County. 

Our response to Sierra Club’s petition explained, “emissions of NOx in the U.S. are 

expected to decline by 29% from 2011 through 2018, even when accounting for increases in 

some sectors, such as the oil and gas industry.” NOx emissions from on-road mobile sources, 

locomotives, and non-road engines are expected to comprise more than 90% of the reductions. 

The air quality of Clark County stands to benefit even more than the rest of the country on a 

relative basis, because mobile sources represent 82% of NOx sources within Clark County, but 

 

21 In addition to the factors discussed above, EPA’s response to the petition, a letter from Gina McCarthy to Seth 

Johnson, Sierra Club, dated August 14, 2014 (included in the docket for this rulemaking), also states that 22 of the 

57 areas were again attaining the ozone NAAQS based on their 2013 design values. 
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

30

only 58% nationally.

22 Our letter also noted 10% declining VOC emissions from 2011 to 2018, 

nearly all of which resulted from on-road and off-road engine rules.23

For Clark County’s remaining sources of NOx emissions, nearly 18% of the total NOx 

emissions for the 2011 Emissions Inventory, more than 33% (3,066 tons) were generated by a 

single facility, the Reid Gardner Generating Station,

24 though Clark County states this figure had 

dropped to 1,848 tons by 2013.25 As we explained in the TSD for our proposed rulemaking, Reid 

Gardner retired three of four coal-fired boilers at the end of 2014. The fourth unit will be closed 

in 2017. Senate Bill 123, the Nevada law that required the early retirement of 557 megawatts 

(MW) of electrical generating capacity at Reid Gardner, allows for the replacement of these units 

with substantially cleaner burning natural gas-fired boilers (500-550 MW) and renewable 

generating capacity (150 MW). The cleaner burning facility at Reid Gardner should provide 

substantial air quality benefits for Clark County. 

Clark County has joined EPA’s voluntary Ozone Advance Program, a collaborative effort 

between EPA, states, tribes, and local governments. It encourages proactive efforts to improve 

air quality that could better position areas to stay in attainment. The docket for this rulemaking 

includes Clark County’s 2014 and 2015 submittals for the program.26 These documents 

acknowledge, as the comments note, increasing design values of the network monitoring system. 

 

22 Nevada NOx emissions by category (e.g. mobile sources, point sources) can be found at http://www.epa.gov/cgibin/broker?_service=data&_debug=0&_program=dataprog.state_1.sas&pol=NOX&stfips=32. 

23 EPA’s August 14, 2014 letter to the Sierra Club also discussed increases in NOx and VOC emissions from the oil 

and gas sector but did not discuss the impact of biogenic VOC emissions, which are likely to remain constant. 

(EPA’s letter is available in the docket for EPA–HQ–OAR–2014–0563 at http://www.regulations.gov/.) 

24 Based on an emissions query of EPA’s Air Markets Division Database (for the year 2011) at 

http://ampd.epa.gov/ampd/, accessed on July 15, 2015.

25 Clark County Ozone Advance Submission, submitted to Ms. Laura Bunte, from Lewis Wallenmeyer, Director, 

Clark County Department of Air Quality, at pp. 2-4, June 23, 2014, available in the docket for today’s rulemaking. 

26 (1) Clark County Department of Air Quality, Ozone Advance Program, Path Forward, June 2014 and (2) Clark 

County Department of Air Quality, Ozone Advance Program, Progress Report, June 2015
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

31

The documents also discuss the use of grants from the (federal) Department of Transportation’s 

Congestion, Mitigation and Air Quality Incentive Program, non-regulatory measures to improve 

air quality, and the previously mentioned reductions at the Reid Gardner Generating Station. 

The commenter is correct in stating that Clark County’s design value appears to have 

increased in the years following the county’s designation as an attainment area (which had been 

based on 2009-2011 data forming the 2011 design value). However, as we have noted, NO2 and 

VOC estimated emissions are declining within Clark County. Additionally, ozone is not 

dependent solely on the emission of precursors.27 Variations in weather conditions play an 

important role in determining ozone levels and thus design values can fluctuate from year to 

year, which EPA also noted in our response to the Sierra Club’s petition for redesignation. 

Recent EPA modeling, which included Clark County, estimated a 2017 Clark County ozone 

maximum design value of 72.8 parts per billion (or 0.0728 parts per million (ppm)), below the 

2008 ozone NAAQS of 0.075 ppm.

28

 

III. Final Action

Under CAA section 110(k)(3), and based on the evaluation and rationale presented in the 

proposed rule, the related TSDs, and this final rule, EPA is approving in part and disapproving in 

part Nevada’s Infrastructure Submittal for the 2008 Ozone, 2010 NO2 and 2010 SO2 NAAQS. 

We are also taking final action on other regulatory changes discussed in our proposed rule. In the 

following subsections, we list the elements for which we are finalizing Infrastructure SIP 

 

27 EPA notes that two monitors identified by the commenter (Spring Mountain Youth Camp monitor (AQS ID 32-

003-7771) and Las Vegas Paiute Tribal monitor (AQS ID 32-003-8000)) are considered non-regulatory and not 

comparable to the NAAQS. The Spring Mountain monitor is not operated per FEM specifications and cannot be 

considered a State/Local Air Monitoring Station and therefore, the collected data, while usable for research 

purposes, is not comparable to the NAAQS. Similarly, The Las Vegas Paiute Tribal monitor is designated as nonregulatory monitor operated for informational purposes only.

28 80 FR 46271 (August 4, 2015) also at http://www.epa.gov/airtransport/ozonetransportNAAQS.html, Design 

Values listed in Ozone Design Values_Transport NODA.xlsx.
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

32

approval or disapproval and provide a summary of the basis for those elements that are partially 

disapproved. We also describe the consequences of our disapprovals and discuss finalizing the 

other regulatory changes in our proposed rule.

A. Summary of Infrastructure SIP Approvals and Partial Approvals

EPA is approving Nevada’s Infrastructure SIP for the 2008 Ozone, 2010 NO2 and 2010 

SO2 NAAQS with respect to the following requirements:

 110(a)(2)(A): Emission limits and other control measures.

 110(a)(2)(B): Ambient air quality monitoring/data system.

 110(a)(2)(C) (in part): Program for enforcement of control measures and regulation of 

new stationary sources (full approval for Clark County).

 110(a)(2)(D) (in part, see below): Interstate Pollution Transport.

 110(a)(2)(D)(i)(I) (in part) - significant contribution to nonattainment, or prongs 1 and 2 

(full approval of NDEP, Clark County and Washoe County for the NO2 NAAQS).

 110(a)(2)(D)(i)(II) (in part) - interstate transport – prevention of significant deterioration, 

or prong 3 (full approval for Clark County).

 110(a)(2)(D)(i)(II) (full approval) - visibility transport, or prong 4.

 110(a)(2)(D)(ii) (in part) - interstate pollution abatement and international air pollution 

(full approval for Clark County).

 110(a)(2)(E): Adequate resources and authority, conflict of interest, and oversight of 

local governments and regional agencies.

 110(a)(2)(F): Stationary source monitoring and reporting.

 110(a)(2)(G): Emergency episodes.

 110(a)(2)(H): SIP revisions.
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

33

 110(a)(2)(J) (in part): Consultation with government officials, public notification, and 

prevention of significant deterioration (PSD) and visibility protection (full approval for 

Clark County).

 110(a)(2)(K): Air quality modeling and submission of modeling data.

 110(a)(2)(L): Permitting fees.

 110(a)(2)(M): Consultation/participation by affected local entities.

EPA is taking no action on Interstate Transport – significant contribution to nonattainment for 

NDEP, Clark County and Washoe County on the Ozone and SO2 NAAQS [Section 

110(a)(2)(D)(i)(II)].

B. Summary of Infrastructure SIP Partial Disapprovals

EPA is disapproving Nevada’s Infrastructure Submittal with respect to the following 

infrastructure SIP requirements:

 110(a)(2)(C) (in part): Program for enforcement of control measures and regulation of 

new and modified stationary sources (disapproved for all NAAQS addressed by this 

proposed rule and covered by the NDEP and Washoe County PSD permitting programs).

 110(a)(2)(D) (in part, see below): Interstate Pollution Transport.

 110(a)(2)(D)(i)(II) (in part): interstate transport – prevention of significant deterioration,

or prong 3 (disapproval for all NAAQS addressed by this proposed rule and covered by 

the NDEP and Washoe County PSD permitting programs).

 110(a)(2)(D)(ii) (in part) - interstate pollution abatement and international air pollution 

(disapproved for all NAAQS addressed by this proposed rule and covered by the NDEP 

and Washoe County PSD permitting programs).
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

34

 110(a)(2)(J) (in part): Consultation with government officials, public notification, PSD, 

and visibility protection (disapproval for all NAAQS addressed by this proposed rule and 

covered by the NDEP and Washoe County PSD permitting programs).

As explained in our proposed rule, TSD, and section II of this final rule, we are disapproving 

Nevada’s Infrastructure Submittal for the NDEP and Washoe County portions of the SIP with 

respect to the PSD-related requirements of CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 

110(a)(2)(D)(ii), and 110(a)(2)(J) because the Nevada SIP does not fully satisfy the statutory and 

regulatory requirements for PSD permit programs under part C, title I of the Act. Both NDEP 

and Washoe County implement the Federal PSD program in 40 CFR 52.21 for all regulated new 

source review (NSR) pollutants, pursuant to delegation agreements with EPA.29 Accordingly, 

although the Nevada SIP remains deficient with respect to PSD requirements in both the NDEP 

and Washoe County portions of the SIP, these deficiencies are adequately addressed in both 

areas by the federal PSD program.

C. Consequences of Partial Disapprovals

EPA takes disapproval of a state plan seriously. We believe that it is preferable, and 

preferred in the provisions of the Clean Air Act, that these requirements be implemented through 

state plans. A state plan need not contain exactly the same provisions that EPA might require, but 

EPA must be able to find that the state plan is consistent with the requirements of the Act in 

accordance with its obligations under section 110(k). Further, EPA’s oversight role requires that 

it assure consistent implementation of Clean Air Act requirements by states across the country, 

even while acknowledging that individual decisions from source to source or state to state may 

 

29 40 CFR 52.1485.
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

35

not have identical outcomes. EPA believes these disapprovals are the only path that is consistent 

with the Act at this time.

Under section 179(a) of the CAA, final disapproval of a submittal that addresses a 

requirement of part D of title I of the CAA (CAA sections 171-193) or is required in response to 

a finding of substantial inadequacy as described in CAA section 110(k)(5) (SIP Call) starts a 

sanctions clock. Nevada’s Infrastructure SIP Submittals were not submitted to meet either of 

these requirements. Therefore, our partial disapproval of Nevada’s Infrastructure Submittals does 

not trigger mandatory sanctions under CAA section 179.

In addition, CAA section 110(c)(1) provides that EPA must promulgate a FIP within two 

years after finding that a state has failed to make a required submission or disapproving a SIP

submission in whole or in part, unless EPA approves a SIP revision correcting the deficiencies 

within that two-year period. As discussed in section III.B of this final rule and in our TSD, we 

are finalizing several partial disapprovals. These disapprovals do not result in new FIP 

obligations, because EPA has already promulgated FIPs to address the identified deficiencies. 

D. Summary of Other Regulatory Actions

EPA is finalizing the other regulatory actions discussed in the proposed rule: defining the 

term Nevada Intrastate Air Quality Control Region; reclassifying the Nevada Intrastate and Las 

Vegas Intrastate Air Quality Control Regions from priority IA to priority III for emergency 

episodes; removing historic language from the Nevada SIP, which refers to a facility no longer in 

existence. 

IV. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review 
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

36

This action is not a "significant regulatory action" under the terms of Executive Order 

(EO) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO.

B. Paperwork Reduction Act

This action does not impose an information collection burden under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 3501 et seq., because this partial approval and partial 

disapproval of SIP revisions under CAA section 110 will not in-and-of itself create any new 

information collection burdens but simply approves certain State requirements, and disapproves 

certain other State requirements, for inclusion into the SIP. Burden is defined at 5 CFR 

1320.3(b).

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a 

regulatory flexibility analysis of any rule subject to notice and comment rulemaking 

requirements unless the agency certifies that the rule will not have a significant economic impact 

on a substantial number of small entities. Small entities include small businesses, small not-forprofit enterprises, and small governmental jurisdictions. For purposes of assessing the impacts of 

today's rule on small entities, small entity is defined as: (1) a small business as defined by the 

Small Business Administration’s (SBA) regulations at 13 CFR 121.201; (2) a small 

governmental jurisdiction that is a government of a city, county, town, school district or special 

district with a population of less than 50,000; and (3) a small organization that is any not-forprofit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today’s rule on small entities, I certify that 

this action will not have a significant impact on a substantial number of small entities. This rule 

does not impose any requirements or create impacts on small entities. This partial SIP approval 
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

37

and partial SIP disapproval under CAA section 110 will not in-and-of itself create any new 

requirements but simply approves certain State requirements, and disapproves certain other State 

requirements, for inclusion into the SIP. Accordingly, it affords no opportunity for EPA to 

fashion for small entities less burdensome compliance or reporting requirements or timetables or 

exemptions from all or part of the rule. Therefore, this action will not have a significant 

economic impact on a substantial number of small entities. 

D. Unfunded Mandates Reform Act

This action contains no Federal mandates under the provisions of Title II of the Unfunded 

Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, or tribal 

governments or the private sector. EPA has determined that the partial approval and partial 

disapproval action does not include a Federal mandate that may result in estimated costs of $100 

million or more to either State, local, or tribal governments in the aggregate, or to the private 

sector. This action approves certain pre-existing requirements, and disapproves certain other preexisting requirements, under State or local law, and imposes no new requirements. Accordingly, 

no additional costs to State, local, or tribal governments, or to the private sector, result from this 

action.

E. Executive Order 13132, Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires 

EPA to develop an accountable process to ensure “meaningful and timely input by State and 

local officials in the development of regulatory policies that have federalism implications.” 

“Policies that have federalism implications” is defined in the Executive Order to include 

regulations that have “substantial direct effects on the States, on the relationship between the 
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

38

national government and the States, or on the distribution of power and responsibilities among 

the various levels of government.”

This action does not have federalism implications. It will not have substantial direct 

effects on the States, on the relationship between the national government and the States, or on 

the distribution of power and responsibilities among the various levels of government, as 

specified in Executive Order 13132, because it merely approves certain State requirements, and 

disapproves certain other State requirements, for inclusion into the SIP and does not alter the 

relationship or the distribution of power and responsibilities established in the Clean Air Act. 

Thus, Executive Order 13132 does not apply to this action.

F. Executive Order 13175, Coordination with Indian Tribal Governments

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal 

Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable 

process to ensure “meaningful and timely input by tribal officials in the development of 

regulatory policies that have tribal implications.” This proposed rule does not have tribal 

implications, as specified in Executive Order 13175. It will not have substantial direct effects on 

tribal governments, on the relationship between the Federal government and Indian tribes, or on 

the distribution of power and responsibilities between the Federal government and Indian tribes. 

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area 

where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of 

Indian country, the rule does not have tribal implications and will not impose substantial direct 

costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply 

to this rule. 
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

39

G. Executive Order 13045, Protection of Children from Environmental Health Risks and 

Safety Risks

EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those 

regulatory actions that concern health or safety risks, such that the analysis required under 

section 5-501 of the EO has the potential to influence the regulation. This action is not subject to 

EO 13045 because it is not an economically significant regulatory action based on health or 

safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997). This partial 

approval and partial disapproval under CAA section 110 will not in-and-of itself create any new 

regulations but simply approves certain State requirements, and disapproves certain other State 

requirements, for inclusion into the SIP.

H. Executive Order 13211, Actions that Significantly Affect Energy Supply, Distribution, 

or Use

This rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because 

it is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 

(“NTTAA”), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary 

consensus standards in its regulatory activities unless to do so would be inconsistent with 

applicable law or otherwise impractical. Voluntary consensus standards are technical standards 

(e.g., materials specifications, test methods, sampling procedures, and business practices) that are 

developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations when the Agency decides not to use available and 

applicable voluntary consensus standards.
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

40

EPA believes that this action is not subject to requirements of Section 12(d) of NTTAA 

because application of those requirements would be inconsistent with the Clean Air Act.

J. Executive Order 12898: Federal Actions to Address Environmental Justice in 

Minority Populations and Low-Income Population

Executive Order (EO) 12898 (59 FR 7629, Feb. 16, 1994) establishes federal executive 

policy on environmental justice. Its main provision directs federal agencies, to the greatest extent 

practicable and permitted by law, to make environmental justice part of their mission by 

identifying and addressing, as appropriate, disproportionately high and adverse human health or 

environmental effects of their programs, policies, and activities on minority populations and lowincome populations in the United States. 

EPA lacks the discretionary authority to address environmental justice in this rulemaking.

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. section 801 et seq., as added by the Small 

Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule 

may take effect, the agency promulgating the rule must submit a rule report, which includes a 

copy of the rule, to each House of the Congress and to the Comptroller General of the United 

States. The EPA will submit a report containing this rule and other required information to the 

U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United 

States prior to publication of the rule in the Federal Register. A major rule cannot take effect 

until 60 days after it is published in the Federal Register. This action is not a “major rule” as 

defined by 5 U.S.C. section 804(2). This rule will be effective on [insert date 30 days from 

date of publication of this document in the Federal Register].

L. Petitions for Judicial Review
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

41

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action 

must be filed in the United States Court of Appeals for the appropriate circuit by [insert date 60 

days from date of publication of this document in the Federal Register]. Filing a petition for 

reconsideration by the Administrator of this final rule does not affect the finality of this rule for 

the purposes of judicial review nor does it extend the time within which a petition for judicial 

review may be filed, and shall not postpone the effectiveness of such rule or action. This action 

may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by reference, 

Intergovernmental relations, Ozone, Nitrogen dioxide, Sulfur dioxide, Reporting and 

recordkeeping requirements.

_September 30, 2015._______ _//signed//____________________

Date Jared Blumenfeld

Regional Administrator

Region 9
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

42

Therefore, 40 CFR Chapter I is amended as follows:

PART 52--[AMENDED]

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

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

Subpart DD—Nevada

2. Section 52.1470 in paragraph (e), the table is amended by adding entries for:

a. "Nevada’s Clean Air Act § 110(a)(1) and (2) State Implementation Plan for the 2008 ozone 

NAAQS, excluding appendices A-F for NDEP; excluding the cover letter to NDEP and 

attachments A and B for Clark County; and excluding the cover letter to NDEP and Attachments 

A and B for Washoe County”;

b. "Nevada’s Clean Air Act § 110(a)(1) and (2) State Implementation Plan for the 2010 nitrogen 

dioxide NAAQS, excluding appendices A-G for NDEP; excluding the cover letter to NDEP and 

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

portion of Nevada’s State Implementation Plan for the 2010 nitrogen dioxide NAAQS, and 

attachments A and B for Washoe County”; 

c. “Washoe County Portion of Nevada’s Clean Air Act § 110(a)(1) and (2) State Implementation 

Plan for the 2010 nitrogen dioxide NAAQS, excluding cover letter to NDEP and attachments A 

and “B; and

d. “Nevada’s Clean Air Act § 110(a)(1) and (2) State Implementation Plan for the 2010 sulfur 

dioxide NAAQS, excluding appendices A-E for NDEP; excluding the cover letter to NDEP and 

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

and public notice information for Washoe County”.

The additions as follows:
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

43

§ 52.1470 Identification of plan.

* * * * *

(e) * * *

EPA-Approved Nevada Nonregulatory Provisions and Quasi-Regulatory Measures

Name of SIP 

provision

Applicable 

geographic or 

nonattainment 

area

State 

submittal 

date 

EPA 

approval date

Explanation

Air Quality Implementation Plan for the State of Nevada

* * * * * * *

Nevada’s Clean Air 

Act § 110(a)(1) and 

(2) State 

Implementation Plan

for the 2008 ozone 

NAAQS, excluding 

appendices A-F for 

NDEP; excluding 

the cover letter to 

NDEP and 

attachments A and B 

for Clark County; 

and excluding the 

cover letter to NDEP 

and Attachments A 

and B for Washoe 

County.

State-wide 12/20/2012 [Insert 

Federal

Register

page 

number 

where the 

document 

begins and 

insert date of 

FR

publication 

date]

“Infrastructure” SIP

for NDEP, Clark 

County and Washoe 

County for the 2008 

8-hour ozone 

standard. 

Nevada’s Clean Air 

Act § 110(a)(1) and 

(2) State 

Implementation Plan 

for the 2010 nitrogen 

dioxide NAAQS,

excluding 

appendices A-G for 

NDEP; excluding 

the cover letter to 

NDEP 

jurisdiction and 

Clark County 

1/18/2013 [Insert 

Federal

Register

page 

number 

where the 

document 

begins and 

insert date of 

FR

“Infrastructure” SIP 

for NDEP and Clark 

County for the 2010 

1-hour nitrogen 

dioxide standard.
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

44

NDEP and 

attachments A-C for 

Clark County; and 

excluding the cover 

letter to NDEP, 

Washoe County 

portion of Nevada’s 

State 

Implementation Plan 

for the 2010 nitrogen 

dioxide NAAQS, 

and attachments A 

and B for Washoe 

County. 

publication 

date]

Washoe County 

Portion of Nevada’s 

Clean Air Act §

110(a)(1) and (2) 

State 

Implementation Plan 

for the 2010 nitrogen 

dioxide NAAQS, 

excluding cover 

letter to NDEP and 

attachments A-B.

Washoe County 3/15/2013 [Insert 

Federal

Register

page 

number 

where the 

document 

begins and 

insert date of 

FR

publication 

date]

“Infrastructure” SIP 

for Washoe County 

for the 2010 1-hour 

nitrogen dioxide 

standard.

Nevada’s Clean Air 

Act § 110(a)(1) and 

(2) State 

Implementation Plan 

for the 2010 sulfur 

dioxide NAAQS, 

excluding the cover 

letter and appendices 

A-E for NDEP; 

excluding the cover 

letter to NDEP and 

attachments A-C for 

Clark County; and 

excluding the cover 

letter to NDEP, 

attachments A-C,

and public notice 

information for 

Washoe County. 

State-wide 6/3/2013 [Insert 

Federal 

Register 

page 

number 

where the 

document 

begins and 

insert date of 

FR 

publication 

date]

“Infrastructure” SIP 

for NDEP, Clark 

County and Washoe 

County for the 2010

1-hour sulfur dioxide 

standard.
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

45

* * * * * * *

3. Section 52.1471 is amended by changing the priority classification for sulfur oxides from “IA” 

to “III” for the Las Vegas Intrastate and Nevada Intrastate air quality control regions. The 

changes as follows:

§52.1471 Classification of regions.

The Nevada plan is evaluated on the basis of the following classifications:

Air Quality Control Region Pollutant

Particulate 

Matter

Sulfur 

oxides

Nitrogen 

dioxide

Carbon 

monoxide

Ozone

Las Vegas Intrastate I III III I I

Northwest Nevada Intrastate I III III III III

Nevada Intrastate IA III III III III

4. Section 52.1472 is amended by adding paragraphs (h),(i) and (j) to read as follows:

§ 52.1472 Approval status.

* * * * *

(h) 2008 8-hour ozone NAAQS: The SIPs submitted on December 20, 2012 are partially 

disapproved for CAA elements 110(a)(2)(C), (D)(i)(II), (D)(ii), and (J) for the NDEP and 

Washoe County portions of the Nevada SIP; no action is taken for CAA element 

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

(i) 2008 1-hour nitrogen dioxide NAAQS: The SIPs submitted on January 18, 2013 are partially 

disapproved for Clean Air Act (CAA) elements 110(a)(2)(C), (D)(i)(II), (D)(ii), and (J) for the 

Nevada Division of Environmental Quality (NDEP) and Washoe County portions of the Nevada 

SIP.
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

46

(j) 2008 2010 1-hour sulfur dioxide NAAQS: The SIPs submitted on June 3, 2013 are 

disapproved for CAA elements 110(a)(2)(C), (D)(i)(II), (D)(ii), and (J) for the NDEP and 

Washoe County portions of the Nevada SIP; no action is taken for CAA element 

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

5. Section 52.1475 is amended by the removal of paragraphs (a) and (b).

§ 52.1475 [Reserved]

Part 81—[AMENDED] 

1. The authority citation for part 81 continues to read as follows:

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

Subpart B—Designation of Air Quality Control Regions 

2. Section 81 is amended by adding §81.276 Nevada Intrastate Air Quality Control Region. The 

Nevada Intrastate Air Quality Control Region consists of the territorial area encompassed by the 

boundaries of the following jurisdictions or described area (including the territorial area of all 

municipalities (as defined in section 302(f) of the Clean Air Act, 42 U.S.C. 1857h(f)) 

geographically located within the outermost boundaries of the area so delimited): In the State of 

Nevada: Churchill County, Elko County, Esmeralda County, Eureka County, Humboldt County, 

Lander County, Lincoln County, Mineral County, Nye County, Pershing County, and White Pine 

County.

The additions as follows:

§ 81.276 Nevada Intrastate Air Quality Control Region. 

The Nevada Intrastate Air Quality Control Region consists of the territorial area encompassed by 

the boundaries of the following jurisdictions or described area (including the territorial area of all 
This document is a prepublication version, signed by Jared Blumenfeld, Acting Regional Administrator, EPA 

Region 9 on September 30, 2015. We have taken steps to ensure the accuracy of this version, but it is not the official 

version.

47

municipalities (as defined in section 302(f) of the Clean Air Act, 42 U.S.C. 1857h(f)) 

geographically located within the outermost boundaries of the area so delimited): 

In the State of Nevada: 

Churchill County, Elko County, Esmeralda County, Eureka County, Humboldt County, Lander 

County, Lincoln County, Mineral County, Nye County, Pershing County, and White Pine 

County.