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[Federal Register Volume 77, Number 58 (Monday, March 26, 2012)]
[Rules and Regulations]
[Pages 17334-17341]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-7025]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

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

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

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

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

FOR FURTHER INFORMATION CONTACT: Thomas Webb, U.S. EPA, Region 9, 
Planning Office, Air Division, Air-2, 75 Hawthorne Street, San 
Francisco, CA 94105. Thomas Webb can be reached at telephone number 
(415) 947-4139 and via electronic mail at webb.thomas@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we,'' 
``us,'' or ``our,'' is used, we mean the United States Environmental 
Protection Agency (EPA).

Table of Contents

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

I. Background

 A. Description of Regional Haze

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

[[Page 17335]]

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

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

C. Our Proposed Action

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

II. BART Determination for NOX at Reid Gardner

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

A. Background

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

[[Page 17336]]

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

 B. NDEP's Determination

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

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

D. EPA's Analysis

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

[[Page 17337]]

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

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

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

B. Long-Term Strategy

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

[[Page 17338]]

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

    In addition to extensive comments addressing NDEP's BART 
determination for NOX at RGGS, we also received comments 
concerning the timing of implementation of BART at RGGS generally, as 
well as comments specifically addressing the SO2 and 
PM10 BART determinations for RGGS. As noted above, we are 
not acting on NDEP's BART determination for NOX at RGGS at 
this time. Therefore, our responses concerning RGGS are limited to 
comments related to the SO2 and PM10 BART 
determinations.
1. BART for SO2 at RGGS
    Comments: Regarding NDEP's BART determination for SO2 at 
RGGS, WildEarth Guardians expressed concern that ``SO2 
limits do not appear to represent the degree of reduction achievable 
through the application of the best system of continuous emission 
reduction.'' In particular, they asserted that ``it appears that Reid 
Gardner is already meeting emission limits that are less than half of 
this proposed limit'', and that ``even Nevada recognizes the 
SO2 emissions increases will occur as a result of [NDEP's] 
proposed BART.'' By contrast, the National Park Service and the U.S. 
Fish and Wildlife Service praised ``NDEP's action to lower the 
SO2 limit'' at RGGS.
    Response: In setting the SO2 BART limits for RGGS, NDEP 
took into account the existing controls at the facility, consistent 
with CAA Section 169A(g)(2) and 40 CFR 51.308(e)(1)(ii)(A). In 
particular, NDEP considered the effect of new fabric filter baghouses 
that were installed on all three BART units at RGGS in 2008 and 2009 
pursuant to a consent decree between the facility's owner and NDEP and 
EPA.\10\ The consent decree established an SO2 emissions 
limit of 0.40 lbs/MMbtu (a million British thermal units), based on a 
10-day rolling average period, for each of the three BART units.\11\ In 
its draft regional haze SIP, NDEP proposed an SO2 emissions 
limit of 0.25 lbs/MMbtu for each of the three BART units at RGGS. In 
response to comments from EPA and the National Park Service, NDEP 
subsequently lowered the BART limits to 0.15 lbs/MMbtu, based on a 24-
hour averaging period.\12\
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    \10\ See Nevada's RH SIP Sections 5.5 and 6.5.2.2.
    \11\ United States v. Nevada Power Company, Case 2:07-cv-00417 
(D. Nev.) (consent decree entered June 15, 2007).
    \12\ See Nevada's RH SIP Chapter 5, footnote 4.
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    In arguing for further reductions in these BART limits, WildEarth 
Guardians notes that, ``according to Clean Air Markets data from the 
EPA, units 1-3 are meeting annual sulfur dioxide emission rates of 
between 0.054 and 0.064 lbs/MMbtu and have for at least the last two 
years.'' However, while the units' current annual average emission 
rates may be less than 0.15 lb/MMbtu, these figures are not directly 
comparable to the 24-hour rolling average emissions limits set by NDEP 
in its BART determination for RGGS. The more relevant points of 
comparison are the units' current Title V permit limits of 0.40 lbs/
MMbtu, based on a 10-day rolling average period, which are more than 
twice the limit that NDEP has set for each of the three BART units in 
its Regional Haze SIP.
    In response to commenters' concerns regarding potential increases 
in SO2 emissions as a result of NDEP's BART determination at 
RGGS, EPA re-examined NDEP's estimates of emission reductions resulting 
from BART controls at RGGS. Nevada's SIP provides two sets of estimated 
emission reductions resulting from BART controls at RGGS, one based on 
the WRAP baseline (4,970 tons) and one based on NDEP's baseline (1,441 
tons) for SO2.\13\ Although SO2 emissions are 
estimated to increase by 838 tons from NDEP's baseline, they are 
expected to decrease by 2,696 tons from the WRAP's baseline. Under both 
scenarios, the emissions after BART Controls are held constant at 2,279 
tons. Thus, the difference in estimated emissions reductions is a 
reflection of the large difference between the WRAP baseline and the 
NDEP baseline for SO2.
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    \13\ See Nevada's RH SIP, Table 5-6 Reid Gardner: BART Emissions 
Reductions in Tons per Year.
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    NDEP's baseline emissions for SO2 were calculated using 
acid rain data that omitted data deemed invalid due to monitoring 
problems that were addressed by the consent decree. According to NDEP, 
the omission of the invalid data effectively lowered the baseline 
emissions (measured in lbs/MMbtu) by nearly half.\14\ Thus, the 
projected increase in SO2 appears to be an artifact of 
NDEP's exceptionally low baseline that is attributable to the exclusion 
of invalid data.
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    \14\ See Nevada's RH SIP Section 5.5.
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    From a broader perspective, NDEP's BART determination for 
SO2 at RGGS will result in a lower emissions limit (0.15 
lbs/MMbtu based on a 24-hour rolling average compared to the current 
Title V Permit limit of 0.40 lbs/MMbtu based on a 10-day rolling 
average period) related to the new fabric filter baghouses and existing 
wet soda ash with a dry flue gas desulfurization system. Since the BART 
determination lowers the short-term emissions limit, there is no valid 
reason to suspect that SO2 emissions will increase as a 
result of BART controls. EPA will use the progress report due five 
years after the SIP's approval to evaluate actual SO2 
emissions at RGGS to ensure that NDEP's BART determination has not 
resulted in increased emissions and will encourage NDEP to take 
appropriate action, if necessary, at that time.
2. BART for PM10 at RGGS
    Comments: Regarding the PM10 limit, WildEarth Guardians 
expressed concern that ``the proposed BART determination is 
unenforceable because there are no monitoring, recordkeeping, or 
reporting requirements proposed that would ensure compliance with the 
24-hour limits. There are simply no monitoring requirements proposed 
that would actually ensure that the PM limit is met on a continuous 
basis. This is contrary to the Clean Air Act, which defines BART based 
on continuous emission reductions.''
    Response: As explained in EPA's BART Guidelines, ``[m]onitoring 
requirements generally applicable to sources, including those that are 
subject to BART, are governed by other regulations. See, e.g., 40 CFR 
part 64 (compliance assurance monitoring); 40 CFR 70.6(a)(3) (periodic 
monitoring); 40 CFR 70.6(c)(1) (sufficiency monitoring).'' \15\ The 
monitoring, recordkeeping and reporting requirements specifically 
applicable to RGGS are found in the existing Nevada SIP as well as the 
facility's Title V permit. In particular, the applicable SIP requires 
continuous monitoring of opacity and compliance with a 20 percent 
opacity limit.\16\ Although opacity does not directly correlate with 
particulate concentrations, it is a good indicator of proper operation 
of the baghouse since almost any opacity from a baghouse-controlled 
coal-fired boiler

[[Page 17339]]

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

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

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

 D. Corrections to EPA's Technical Analysis

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

IV. EPA Action

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

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

V. Statutory and Executive Order Reviews

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

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

[[Page 17340]]

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

List of Subjects in 40 CFR Part 52

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

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

PART 52--[AMENDED]

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

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

Subpart DD--Nevada

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

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

Sec.  52.1470  Identification of plan.

* * * * *
    (c) * * *

                                    Table 1--EPA-Approved Nevada Regulations
----------------------------------------------------------------------------------------------------------------
                                                             State                                Additional
          State citation              Title/subject     effective date   EPA approval date       explanation
----------------------------------------------------------------------------------------------------------------
 Nevada Administrative Code, Chapter 445B, Air Controls, Air Pollution; Nevada Administrative Code, Chapter 445,
                    Air Controls, Air Pollution; Nevada Air Quality Regulations--Definitions
����������������������������������������������������������������������������������������������������������������
 
                                                  * * * * * * *
445B.029.........................  ``Best available            4/23/09  [Insert page number  Included in
                                    retrofit                             where the document   supplemental SIP
                                    technology''                         begins 3/26/12].     revision submitted
                                    defined.                                                  on September 20,
                                                                                              2011, and approved
                                                                                              as part of
                                                                                              approval of Nevada
                                                                                              Regional Haze SIP.
 
                                                  * * * * * * *
445B.22095.......................  Emission limitation         4/23/09  [Insert page number  Included in
                                    for BART.                            where the document   supplemental SIP
                                                                         begins 3/26/12].     revision submitted
                                                                                              on September 20,
                                                                                              2011, and approved
                                                                                              as part of
                                                                                              approval of Nevada
                                                                                              Regional Haze SIP.
445B.22096, excluding the NOX      Control measures            1/28/10  [Insert page number  Included in
 emission limits and control        constituting BART;                   where the document   supplemental SIP
 types in sub-paragraph (1)(c).     limitations on                       begins 3/26/12].     revision submitted
                                    emissions.                                                on September 20,
                                                                                              2011, and approved
                                                                                              as part of
                                                                                              approval of Nevada
                                                                                              Regional Haze SIP.
                                                                                              Excluding the NOX
                                                                                              emission limits
                                                                                              and control types
                                                                                              for units 1, 2 and
                                                                                              3 of NV Energy's
                                                                                              Reid Gardner
                                                                                              Generating
                                                                                              Station.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
    (e) * * *

[[Page 17341]]

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

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

Sec.  52.1488  Visibility protection.

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

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

Sec.  52.1491  Interstate transport.

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

[FR Doc. 2012-7025 Filed 3-23-12; 8:45 am]
BILLING CODE 6560-50-P
```