[Federal Register Volume 77, Number 205 (Tuesday, October 23, 2012)]
[Rules and Regulations]
[Pages 64737-64748]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-25558]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2011-0047; FRL-9739-8]
Partial Approval and Partial Disapproval of Air Quality State
Implementation Plans; Nevada; Infrastructure Requirements for Ozone and
Fine Particulate Matter
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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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 1997 8-
hour ozone national ambient air quality standards (NAAQS) and the 1997
and 2006 NAAQS for fine particulate matter (PM2.5). 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
requires EPA to act on such SIPs. Nevada has met most of the applicable
requirements. Where EPA is disapproving, in part, Nevada's SIP
revisions, the majority of the deficiencies have been already been
addressed by a federal implementation plan (FIP). For one remaining
deficiency, this final rule sets a two-year deadline for EPA to
promulgate a FIP, unless EPA approves an adequate SIP revision prior to
that time. EPA remains committed to working with Nevada's environmental
agencies to develop such a SIP revision.
DATES: Effective Date: This final rule is effective on November 23,
2012.
ADDRESSES: EPA has established a docket for this action, identified by
Docket ID Number EPA-R09-OAR-2011-0047. The index to the docket for
this action is available electronically at http://www.regulations.gov
and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco,
California. While all documents in the docket are listed in the index,
some information may be publicly available only at the hard copy
location (e.g., copyrighted material), and some may not be publicly
available in either location (e.g., confidential business information
(CBI)). To inspect the hard copy materials, please schedule an
appointment during normal business hours with the contact listed
directly below.
FOR FURTHER INFORMATION CONTACT: Rory Mays, Air Planning Office (AIR-
2), U.S. Environmental Protection Agency, Region IX, (415) 972-3227,
[email protected].
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
A. Summary of Approvals
B. Approval of Statutory Provisions and Other Materials
C. Summary of Disapprovals
D. Consequences of Disapprovals
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.
On July 18, 1997, EPA issued a revised NAAQS for ozone \1\ and a
new NAAQS for fine particulate matter (PM2.5).\2\ EPA
subsequently revised the 24-hour PM2.5 NAAQS on September
21, 2006.\3\ Each of these actions triggered a requirement for states
to submit an infrastructure SIP to address the applicable requirements
of section 110(a)(2) within three years of issuance of the new or
revised NAAQS.
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\1\ The 8-hour averaging period replaced the previous 1-hour
averaging period, and the level of the NAAQS was changed from 0.12
parts per million (ppm) to 0.08 ppm (62 FR 38856).
\2\ The annual PM2.5 standard was set at 15
micrograms per cubic meter ([mu]g/m\3\), based on the 3-year average
of annual arithmetic mean PM2.5 concentrations from
single or multiple community-oriented monitors and the 24-hour
PM2.5 standard was set at 65 [mu]g/m\3\, based on the 3-
year average of the 98th percentile of 24-hour PM2.5
concentrations at each population-oriented monitor within an area
(62 FR 38652).
\3\ The final rule revising the 24-hour NAAQS for
PM2.5 from 65 [mu]g/m\3\ to 35 [mu]g/m\3\ was published
in the Federal Register on October 17, 2006 (71 FR 61144).
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On August 3, 2012 (77 FR 46361), EPA proposed to approve in part
and disapprove in part several SIP revisions and one proposed SIP
revision submitted by Nevada Division of Environmental Protection
(NDEP) to address the infrastructure requirements of CAA section
110(a)(1) and (2) for the 1997 ozone, 1997 PM2.5, and 2006
PM2.5 NAAQS. NDEP's submittals include SIP revisions
submitted to EPA on February 1, 2008 (``2008 Ozone Submittal''),
February 26, 2008 (``2008 PM2.5 Submittal''), September 15,
2009 (``2009 PM2.5 Submittal''), and December 4, 2009
(``2009 PM2.5 Supplement''), and a proposed SIP revision
submitted on July 5, 2012. The proposed SIP revision served as a
supplement to the prior four infrastructure SIP revisions and was
submitted under the parallel processing mechanism provided by 40 CFR
Part 51, Appendix V, Section 2.3. The final version of the July 5, 2012
proposed SIP revision was adopted on August 30, 2012 and submitted to
EPA on the same day (``2012 Submittal'').
We are taking final action on all five submittals since they
collectively
[[Page 64738]]
address the applicable infrastructure SIP requirements for the 1997
ozone, 1997 PM2.5, and 2006 PM2.5 NAAQS. We refer
to them collectively herein as ``Nevada's Infrastructure SIP
Submittals.''
The rationale supporting EPA's action, including the scope of
infrastructure SIPs in general, is explained in our August 3, 2012
Notice of Proposed Rulemaking (proposed rule) and the three associated
technical support documents (TSDs) \4\ and will not be restated here.
The proposed rule and TSDs are available online at http://www.regulations.gov, Docket ID number EPA-R09-OAR-2011-0047.
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\4\ The three TSDs are as follows: (1) ``Technical Support
Document: EPA Evaluation of Nevada Provisions for 1997 Ozone, 1997
PM2.5, and 2006 PM2.5 National Ambient Air
Quality Standards for Sections 110(a)(2)(A) thru (C) Sections
110(a)(2)(D)(i)(II) and (D)(ii), Sections 110(a)(2)(E)(i) and
(E)(iii), Sections 110(a)(2)(F) thru (M),'' July 2012 (``Overarching
TSD''); (2) ``Technical Support Document for EPA's Proposed Action
on the 2009 Infrastructure State Implementation Plan (Transport
Portion) for the State of Nevada,'' July 2012 (``2006
PM2.5 Transport TSD'', or ``Transport TSD''); and (3)
``Technical Support Document: EPA Evaluation of Nevada Provisions
for Section 110(a)(2)(E)(ii)/Section 128 Conflict of Interest
Requirements,'' July 2012 (``Section 128 TSD'').
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II. EPA's Response to Comments
The public comment period on EPA's proposed rule opened on August
3, 2012, the date of its publication in the Federal Register, and
closed on September 4, 2012. During this period, EPA received two
comment letters: one from NDEP on September 4, 2012 (herein ``NDEP's
comment(s)''); and one from Washoe County Health District Air Quality
Management Division (WCHD-AQMD) on September 4, 2012 (herein ``Washoe
County's comment(s)''). Both letters are available in the docket to
today's final rule.\5\
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\5\ See document numbers EPA-R09-OAR-2011-0047-0135 (NDEP's
comment letter) and EPA-R09-OAR-2011-0047-0136 (Washoe County's
comment letter) at www.regulations.gov under docket ID number EPA-
R09-OAR-2011-0047.
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NDEP's comment letter numbers its comments 1 through 9. NDEP
comment numbers 1 through 3 support various aspects of EPA's proposed
rule, while numbers 4 through 9 request clarification on several
points. Washoe County's comment letter generally supports EPA's
proposed rule with two exceptions, which it numbers 1 and 2, and
requests that EPA make a clarification on one additional point. We
appreciate NDEP and Washoe County's comments in support for our
proposed rule and respond to their comments regarding requested
clarifications and corrections below. Note that we have grouped
comments from NDEP and Washoe County that are similar in content into
single comments and responses.
Comment #1:
NDEP's comment number 4 and Washoe County comment number 1 note
that EPA proposes to disapprove the portion of the SIP related to
prevention of significant deterioration (PSD) permit programs for NDEP
and Washoe County because the programs do not completely satisfy the
statutory and regulatory requirements for PSD permit programs. NDEP and
WCHD-AQMD also note, however, that EPA recognizes that the deficiencies
related to the PSD programs are adequately addressed by the existing
federal implementation plan (FIP), for which EPA has delegated
enforcement authority to NDEP and Washoe County. Moreover, NDEP argues
that the provisions of 40 CFR 52.1485(b), which codify the PSD FIP by
incorporating EPA's PSD provisions in the Nevada SIP, make EPA's PSD
FIP a part of the SIP, with the exception of the portion applicable to
Clark County. As such, NDEP and WCHD-AQMD believe that the elements of
the Nevada SIP related to PSD programs under their jurisdictions should
be approved.
Response #1:
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). CAA section 110(a)(2) sets forth the content
requirements for such plans, including the requirement for a permit
program as required in part C (``Prevention of Significant
Deterioration of Air Quality,'' or ``PSD'') of title I of the CAA. Such
plans are referred to as state implementation plans or SIPs.
EPA's authority to promulgate a FIP derives from EPA's
determination that a State has failed to submit a complete, required
SIP submission or from EPA's disapproval of a State submission of a SIP
or SIP revision. See CAA section 110(c)(1). The SIP, viewed broadly,
thus includes both portions of the plan submitted by the State and
approved by EPA as well as any FIP promulgated by EPA to substitute for
a State plan disapproved by EPA or not submitted by a State. See 40 CFR
52.02(b).
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'').
See 39 FR 42510 (December 5, 1974). In 1975, EPA codified the PSD FIP
in each state's subpart in 40 CFR part 52. See 40 FR 25004 (June 12,
1975)(adding 40 CFR 52.1485 to Subpart DD--Nevada). 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.
See 43 FR 26380 (June 19, 1978) and 45 FR 52676 (August 7, 1980). 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, and has delegated responsibility for conducting PSD review, as
per the PSD FIP, to NDEP and the Washoe County District Health
Department. 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 District
Health Department'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), (J), and (K), is appropriate because
EPA disapproved the State's submitted plan as not adequately addressing
PSD program requirements. To conclude otherwise would be inconsistent
with the long-standing and current disapproval of the SIP for PSD for
the applicable areas, with the statutory foundation upon which the PSD
FIP is authorized, and with the obligation under section 110(a) for
each State to 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.
Comment #2:
NDEP's comment number 6 and Washoe County comment number 2 state
that NDEP and Washoe County Health District AQMD ``[do] not believe
that the PSD program as it relates to greenhouse gases renders this SIP
deficient with respect to ozone and PM2.5'' and request that
EPA explain why greenhouse gas (GHG) provisions are ``essential to
enforcing the PM2.5 NAAQS.'' Both comments refer to pages
10, 42, and 43 of EPA's Overarching TSD for EPA's proposed rule.
Response #2:
The PSD requirements for the regulation of greenhouse gases are
relevant to our evaluation of SIPs submitted with respect to the ozone
and PM2.5 (or any) NAAQS because those PSD requirements
apply on a source-by-source basis for all federally regulated
pollutants emitted by that source that meet the PSD applicability
thresholds,
[[Page 64739]]
rather than applying on a pollutant-by-pollutant basis. For example,
the CAA specifies that a new source that triggers PSD because of its
emissions of ozone precursors or PM2.5 is also subject to
PSD for any other federally regulated pollutant that it emits above the
applicable significance levels and for GHGs, if it emits those
pollutants above the thresholds established by the GHG Tailoring
Rule.\6\ Accordingly, for the Nevada Infrastructure SIPs for the 1997
ozone, 1997 PM2.5, and 2006 PM2.5 NAAQS to be
fully approvable, the Nevada SIP must include the appropriate PSD
requirements for all other federally regulated pollutants, including
GHGs. Because Nevada's Infrastructure SIPs fail to include those
requirements for GHGs with respect to the NDEP and Washoe County
portions of the SIP, the EPA must partially disapprove these SIP
submittals. Consistent with our proposal, however, we reiterate that
``[a]lthough 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.'' See 77 FR 46361 at 46367.
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\6\ The full title of the GHG Tailoring Rule is ``Prevention of
Significant Deterioration and Title V Greenhouse Gas Tailoring Rule;
Final Rule.'' For further explanation of the GHG PSD permitting
requirements, see the GHG Tailoring Rule, 75 FR 31514 (June 3,
2010); ``Action To Ensure Authority To Issue Permits Under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Findings of Substantial Inadequacy and SIP
Call; Final Rule,'' 75 FR 77698 (December 13, 2010); ``Limitation of
Approval of Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas-Emitting Sources in State Implementation
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010).
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Comment #3:
NDEP's comment number 5 states that ``EPA proposes to partially
disapprove the NDEP's submittal [with respect to the `good neighbor'
requirements of CAA section 110(a)(2)(D)(i)(I)], stating that it is not
relevant, and to partially approve the submittal based on EPA's
independent evaluation of Nevada's impact on receptor states.'' NDEP
stated its belief that ``it would be simpler not to do a partial
disapproval based on information that EPA deemed immaterial to its
decision-making, but rather to fully approve the SIP based on EPA's own
data analysis demonstrating a lack of impacts on receptor states.''
Response #3:
We disagree. EPA proposed to partially disapprove Nevada's 2009
PM2.5 Submittal and 2009 PM2.5 Supplement with
respect to the ``good neighbor'' requirements of CAA section
110(a)(2)(D)(i)(I), because the State's submission ``relies on
irrelevant factors and lacks any technical analysis to support the
State's conclusion with respect to interstate transport.'' See 77 FR
46361 at 46368. We also proposed to partially approve the submission,
however, based on EPA's supplemental evaluation of relevant technical
information, which supports a finding that emissions from Nevada do not
significantly contribute to nonattainment or interfere with maintenance
of the 2006 24-hour PM2.5 NAAQS in any other state and that
the existing Nevada SIP is, therefore, adequate to meet the
requirements of CAA section 110(a)(2)(D)(i)(I) for the 2006 24-hour
PM2.5 NAAQS. Id. Our proposal to partially approve and
partially disapprove the submission was based not on information that
``EPA deemed immaterial to its decision-making,'' but rather on
information submitted by the State in the form of a SIP submission
which we found inadequate to satisfy the applicable CAA requirements.
Specifically, as discussed in the Transport TSD for this proposal,
Nevada's 2009 PM2.5 Submittal and 2009 PM2.5
Supplement (collectively the ``2009 SIP Submittals'') appear to
conclude that the existing Nevada SIP satisfies the requirements of CAA
section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS,
among other requirements of CAA section 110(a). See Transport TSD at 1.
The only support provided for this conclusion in the 2009 SIP
Submittals is a reference to EPA's previous approval of Nevada's CAA
section 110(a)(2)(D)(i) interstate transport SIP for the 1997 8-hour
ozone and 1997 PM2.5 NAAQS at 72 FR 41629 (July 31, 2007).
See Transport TSD at 1, 2. The 2009 SIP Submittals contains no
technical analysis of potential interstate transport or any other
support for the State's conclusion that the existing Nevada SIP
satisfies the requirements of CAA section 110(a)(2)(D)(i)(I) for the
2006 24-hour PM2.5 NAAQS. See id. Moreover, Nevada submitted
nothing to address the requirements of CAA section 110(a)(2)(D)(i)(I)
for the 2006 24-hour PM2.5 NAAQS in Clark County. See id. at
footnote 1.
As explained in the Transport TSD, EPA does not agree with NDEP's
suggestion or conclusion in the 2009 SIP Submittals that EPA's previous
approval of Nevada's section 110(a)(2)(D)(i) interstate transport SIP
for the 1997 8-hour ozone NAAQS and the 1997 p.m.2.5 NAAQS
could support, in any way, the conclusion that the SIP adequately
addresses the requirements of CAA section 110(a)(2)(D)(i)(I) for the
2006 24-hour PM2.5 NAAQS. See id. at 2. The cited 2007
rulemaking addressed CAA requirements for different NAAQS and thus
could not support a conclusion that the requirements have been met with
respect to the 2006 24-hour PM2.5 NAAQS. See id.
Given the absence of any technical demonstration in the State's
submission showing that Nevada emission sources do not significantly
contribute to nonattainment or interfere with maintenance of the 2006
24-hour PM2.5 NAAQS in any other state, we cannot fully
approve the 2009 SIP Submittals as satisfying the requirements of CAA
section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS.
We are, however, partially approving the 2009 SIP Submittals based on
EPA's independent review of relevant technical information, which
supports the State's conclusion that Nevada emission sources do not
significantly contribute to nonattainment or interfere with maintenance
of the 2006 24-hour PM2.5 NAAQS in any other state and that
section 110(a)(2)(D)(i)(I) of the CAA therefore does not require
additional controls in Nevada to prohibit such impacts.
Comment and Response #4:
NDEP comment number 8 recommends several corrections and
clarifications to the text of our Transport TSD. We respond to each
sub-comment following separate comment summaries below.
First, citing pages 7 and 11 of our Transport TSD, NDEP states that
``EPA has characterized Idaho as more distant from Nevada than Utah,
Oregon and California'' but notes that Nevada and Idaho share a border.
We agree that our Transport TSD could have better characterized the
location of Idaho relative to Nevada and the distance from Nevada to
nonattainment receptors in Idaho relative to those in ``other western
states'' (i.e., Washington and Montana, see pages 7 and 11 of our
Transport TSD). EPA discussed the nonattainment receptor in Idaho as
part of its discussion of ``other western states with nonattainment
receptors located farther away'' because the receptor in Shoshone
County, Idaho (Pinehurst), located in northern Idaho, is more distant
from Nevada compared to the receptors located in Utah, Oregon, and
California. But NDEP correctly notes that like Utah, Oregon, and
California, Idaho shares a border with Nevada.
Second, citing page 16 of the Transport TSD, NDEP encourages EPA to
expressly state that ``EPA's analysis shows no significant contribution
by Nevada to nonattainment in the Southern California area.''
[[Page 64740]]
In Section IV.B.3. of our Transport TSD (see pages 15-16),
regarding nonattainment receptors in California, for four of the five
areas discussed we stated that ``we believe it is reasonable to
conclude that emissions from Nevada sources do not significantly
contribute to nonattainment of the 2006 24-hour PM2.5
standard at these receptor locations.'' We inadvertently did not make
such a statement for the Southern California--Los Angeles, Riverside,
San Bernardino area. In response to this comment, we are clarifying our
conclusion that emissions from Nevada sources do not significantly
contribute to nonattainment of the 2006 24-hour PM2.5
standard at the Southern California--Los Angeles, Riverside, San
Bernardino nonattainment receptor locations.
Third, citing pages 20-22 of the Transport TSD, NDEP states that
``EPA reaches a conclusion that Nevada emissions do not interfere with
maintenance of the 2006 p.m.2.5 NAAQS in California (Section
V.B.1.) or Utah (Section V.B.3.); however, no conclusion is stated for
Arizona (Section V.B.2).'' NDEP believes a similar conclusion was
implied and encourages EPA to state as much for Arizona.
We agree and are clarifying our conclusion that emissions from
Nevada sources do not interfere with maintenance of the 2006 24-hour
PM2.5 NAAQS at the Arizona maintenance receptor locations
discussed in Section V.B.2 (page 21) of the Transport TSD.
Fourth, NDEP asserts that EPA's discussion on pages 20-22 of the
Transport TSD ``appears to talk about nonattainment areas rather than
maintenance areas'' while ``Table III.A.1 lists Arizona as having two
maintenance areas for PM2.5 and no nonattainment areas.''
NDEP perceives a discrepancy therein.
It appears NDEP has misunderstood a distinction that EPA is making
between nonattainment or maintenance receptors and nonattainment or
maintenance areas. Table III.A.1 lists the nonattainment and
maintenance ``receptors'' located in western counties, which EPA
selected based on the criteria discussed in Section III.A (``Discussion
of Nonattainment and Maintenance Receptor Selection Methodology'').
These criteria for selection of nonattainment and maintenance
``receptors'' are not related to the criteria for designation of
nonattainment areas under CAA section 107 or for approval of
maintenance plans under CAA section 175A. Thus, it is possible to have
maintenance ``receptors'' in areas that have been designated as
nonattainment areas, as in Arizona and Utah.
Fifth, NDEP states that ``Table III.A.1 lists Utah as having no
maintenance areas, so the NDEP is uncertain why Utah is discussed in
section V of this Appendix'' and that ``[t]he discussion of
nonattainment areas in Utah (Section IV.B.1.) appears to be repeated in
Section V.B.3 for maintenance receptors.'' NDEP perceives a discrepancy
therein.
We disagree that Table III.A.1 (``List of Western Counties with
Daily PM2.5 Nonattainment or Maintenance Receptors'', page
8) lists Utah as having no maintenance areas. The last three rows for
Utah in this table include an asterisk in the Receptor Type column. The
asterisk is defined below the table as follows: ``This county contains
both nonattainment and maintenance receptors. See Appendix A for more
details.'' Appendix A (``List of Nonattainment and Maintenance
Receptors for 2006-2010''), in turn, lists all of the individual
receptors that were summarized by county in Table III.A.1. There is one
maintenance receptor in each of Utah and Weber counties, Utah--hence
our discussion of Utah in Section V (``Transport Assessment for
Maintenance Receptors''). The discussion of nonattainment receptors in
Utah (Section IV.B.1.) is similar to the discussion in Section V.B.3
for maintenance receptors in Utah because the receptors are near to
each other and the potential for transport from Nevada for each is
similar.
Comment #5:
NDEP comment number 7 addresses EPA's statements in the Overarching
TSD (pages 11-13) regarding certain provisions that are part of the
Nevada SIP, but have been repealed or replaced in the Nevada
Administrative Code (NAC). NDEP highlights that such regulations ``have
not been rescinded from the Nevada SIP, and EPA considers them to be
federally enforceable'' and suggests that a more accurate
characterization would be to say that such provisions ``have been
repealed or replaced in the NAC, but not in the SIP.''
Response #5:
It is true that the regulations cited in pages 11-13 of our
Overarching TSD having parenthetical notes about replacement or repeal
can be accurately characterized as having been repealed or replaced in
the NAC (i.e., at the state level), but remaining in the Nevada SIP
(i.e., the set of federally enforceable provisions with respect to
Nevada air quality). In part, our intent was to clarify the status of
these provisions so that the public could more readily understand which
provisions are in effect and to identify certain provisions that, as
repealed or replaced (but not revised in the SIP), did not provide
support for how Nevada meets the section 110(a)(2)(C) requirement that
each SIP ``include a program to provide for the enforcement of the
measures described in [section 110(a)(2)(A)].''
However, the broader meaning of such clarifications and
identifications relates to CAA section 110(a)(1), which requires the
state to adopt and submit ``a plan which provides for implementation,
maintenance, and enforcement'' of the relevant NAAQS (i.e., the 1997
ozone, 1997 PM2.5, and 2006 PM2.5 NAAQS, in this
case). On its face, if Nevada has repealed or replaced certain Nevada
Administrative Codes, we would understand this to mean that NDEP is not
in fact implementing such regulations as part of a plan to implement,
maintain, and enforce the NAAQS. In other words, infrastructure SIPs
are not merely a measure of what is federally enforceable under a
state's SIP; they are a collection of the provisions and plans that the
state actively employs to implement the NAAQS.
Our Overarching TSD discussed three provisions in particular
wherein we noted that ``it is not clear how Nevada intended that these
regulations support the enforcement of the emission limitation
regulations.'' See Overarching TSD at page 13. We reiterate our
statement from that same page, however, that ``[n]otwithstanding these
three provisions, on the basis of the statutory and regulatory
provisions, which have been approved into the SIP, we find that Nevada
has an adequate program for enforcement of its provisions for emission
limits at the state level.''
Comment and Response #6:
NDEP comment number 9 recommends several corrections and
clarifications to the text of our Overarching TSD. We respond to each
sub-comment following separate comment summaries below.
First, NDEP notes that on page 6, footnote 9, the second sentence
should read, ``Adele Malone, Supervisor, Planning and Modeling Branch,
* * * .'' We thank NDEP for its clarification regarding the Branch
title, which we had listed as ``Air Planning Branch'' in footnote 9 of
the Overarching TSD.
Second, NDEP notes that on page 11 EPA listed Nevada Air Quality
Regulation (NAQR) Article 16.3.3.2 and 16.3.3.3 as having been cited in
support of CAA 110(a)(2)(C), and requests EPA to remove it from the
list of submitted
[[Page 64741]]
regulations. We agree that Articles 16.3.3.2 and 16.3.3.3 were not
cited in Nevada's Infrastructure SIP Submittals for section
110(a)(2)(C); our inclusion of these provisions in the list of
regulations with respect to 110(a)(2)(C) was an inadvertent addition.
To clarify further, Nevada's 2008 Ozone Submittal, 2008
PM2.5 Submittal, and 2009 PM2.5 Submittal each
cited Article 16.3.3.2 and 16.3.3.3 listed for section 110(a)(2)(A).
See Enclosure 1, page 1 of each of these submittals. Given that these
regulations pertain to opacity emission limits for kilns and related
clinker coolers, they are appropriate for purposes of addressing the
requirements of section 110(a)(2)(A), as referenced by these submittals
and discussed in our Overarching TSD.
Third, NDEP notes a contradiction in the last sentence of the first
full paragraph of page 43 regarding the PSD portion of the section
110(a)(2)(J) requirements and Clark County. We agree that this sentence
contradicts our other stated conclusions regarding Clark County's PSD
program and the PSD requirements of CAA section 110(a)(2)(J). We hereby
clarify that our intended statement, as noted in the conclusion
paragraph of that same page, was that ``the Clark County portion of the
Nevada SIP meets the PSD-related requirements of section 110(a)(2)(J),
contingent upon final approval of the proposed SIP revisions [for
permitting new or modified stationary sources in Clark County].''
Furthermore, based on our final approval of those Clark County SIP
revisions,\7\ we are finalizing our approval of section 110(a)(2)(J)
for the Clark County portion of the SIP.
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\7\ We have placed a copy of the signed, pre-publication version
of the final rule approving the Clark County SIP revisions in the
docket for this rulemaking.
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Fourth, NDEP believes that EPA had intended to reference NAQR
Article 13.3.1.2(b) on page 45, rather than Article 13.4.1.2(b), and
that the latter is not in the applicable Nevada SIP. NDEP also refers
to 77 FR 14862. We referred to Article 13.4.1.2(b) with respect to the
requirements of section 110(a)(2)(K) because it was included in
Enclosure 2 of Nevada's 2008 Ozone Submittal, 2008 p.m.2.5
Submittal, and 2009 p.m.2.5 Submittal and contains
requirements for diffusion models for the permitting review of new
sources. However, NDEP is correct that Article 13.4.1.2(b) is not in
the Nevada SIP. Rather, Article 13.3.1.2(b), which is part of the
Nevada SIP and contains requirements for diffusion modeling, relates
most closely to the air quality modeling requirements of section
110(a)(2)(K). See 77 FR 14682 at 14872.
Fifth, NDEP notes that Footnote 19 states that `` * * * NDEP
repealed NAC 445.694 and did not submit a replacement for inclusion in
the SIP.'' NDEP states that this footnote was inaccurate since the
authority to repeal a state regulation lies with the Nevada State
Environmental Commission. We thank NDEP for its clarification. Footnote
19 of the Overarching TSD should have made clear that the State
Environmental Commission is the body authorized under state law to
adopt regulations to prevent, abate and control air pollution (NRS
445B.210), the Department of Conservation and Natural Resources is
designated as the air pollution control agency for the State of Nevada
for the purposes of the CAA (NRS 445B.205), and the Administrator of
NDEP is the official designee of the Director of the Department of
Conservation and Natural Resources for the purposes of the CAA,
including, but not limited to, adoption, revision, and submittal of
SIPs to EPA.
Comment #7:
Washoe County notes a ``minor correction/clarification that should
be made'' in EPA's Section 128 TSD on pages 4 and 7. Washoe County
identifies the District Health Officer of the Washoe County Health
District, or his designee, as the Control Officer, pursuant to Washoe
County Air Quality Regulation (AQR) 010.042, rather than the AQMD
Director, as stated in EPA's Section 128 TSD. The comment further
states that the AQMD Director and Branch Chief are designees of the
Control Officer and that the applicability of section 128 does not
change and remains as ``not applicable'' because it ``applies to boards
and bodies composed of multiple individuals.''
Response #7:
EPA agrees that we should have identified the District Health
Officer of Washoe County Health District as the Control Officer in
Washoe County. Washoe County Air Quality Regulation (AQR) 010.042
defines ``Control Officer'' as the ``District Health Officer of the
Washoe County Health District or the person designated by said District
Health Officer to enforce these local air pollution control ordinances
and regulations as approved by said District Board of Health created
pursuant to the interlocal agreement of the City of Reno, the City of
Sparks, and the County of Washoe, Nevada.'' AQR 020.020 (``Control
Officer--Powers and Duties'') states that the ``Control Officer, or his
designated agent or representative, shall enforce the provisions of
these [air pollution control] regulations.'' From the context of Washoe
County's comments and conversation with WCHD-AQMD staff, we understand
the AQMD Director and Branch Chief to be designated agents or
representatives of the Control Officer (i.e., the District Health
Officer of the Washoe County Health District), pursuant to AQR 020.020.
We cited AQR 020.020 in our Section 128 TSD because it authorizes
the Control Officer and his designated agents or representatives to
issue corrective action orders (a kind of enforcement order). Thus, the
Control Officer and his designated agents or representatives are
subject to the requirements of section 128(a)(2). This reflects a point
of distinction with respect to Washoe County's comment that the
requirements of CAA section 128 are ``not applicable'' to the Control
Officer or his agents or representatives. While we agree that section
128(a)(1) regarding board membership requirements does not apply to
individual decision-makers, such as the Control Officer, we reaffirm
that the disclosure requirement of section 128(a)(2) applies both to
board members and to heads of executive agencies and their delegates as
is clear on the face of the statute. See page 2 of our Section 128 TSD.
As a result, we have assessed whether the Washoe County District
Health Officer is covered by Nevada's statutes concerning disclosure of
potential conflicts of interest. As per NRS 281A.160.1, a public
officer in Nevada is defined by two criteria: (a) that the person is
appointed or elected to a position established by a charter or
ordinance of any county, and (b) that his or her position ``[i]nvolves
the exercise of a public power, trust, or duty.'' The District Health
Officer is a public officer under these criteria because he or she is a
person appointed to a position established by the Washoe County Code
and because approval of permits or enforcement orders under state or
county law involves an exercise of a public power, trust or duty.\8\
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\8\ For clarity's sake, we note that NRS 281A.160(2) contains
several exemptions for the definition of ``public officer.'' In
particular, NRS 281A.160(2)(d) exempts county health officers
appointed pursuant to NRS 439.290. It is important to note that
while a county health officer is appointed by the relevant board of
county commissioners, pursuant to NRS 439.290, a district health
officer in a county whose population is less than 700,000 (e.g.,
Washoe County) is appointed by the relevant district board of
health, pursuant to NRS 439.400. Thus, the exemption under NRS
281A.160 does not apply to the Washoe County District Health
Officer.
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Our determinations regarding disclosure as it relates to the AQMD
Director and Branch Chief remain
[[Page 64742]]
unchanged. The AQMD Director is a public officer, pursuant to NRS
281A.160, and the AQMD Branch Chief of the Permitting and Compliance
Branch is a public employee, pursuant to NRS 281A.150, (see pages 8-9
of our Section 128 TSD) and they are both subject to adequate
disclosure requirements under CAA section 128(a)(2), as codified at NRS
281A.410 and NRS 281A.420 (see pages 11-13 of our Section 128 TSD).
Thus, our overall conclusion remains that the conflict of interest
provisions \9\ submitted in Nevada's 2012 Submittal meet the
requirements of CAA section 128 and section 110(a)(2)(E)(ii). We are
therefore finalizing our proposed approval of Nevada's conflict of
interest provisions into the SIP and our proposed approval of Nevada's
Infrastructure SIP Submittals for the 1997 ozone, 1997
PM2.5, and 2006 PM2.5 NAAQS for section
110(a)(2)(E)(ii).
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\9\ i.e., NRS 232A.020, NRS 281A.150, NRS 281A.160, NRS
281A.400, NRS 281A.410, and NRS 281A.420.
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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 SIP Submittals for the 1997 ozone, 1997
PM2.5, and 2006 PM2.5 NAAQS. In the following
subsections, we list the elements for which we are finalizing approval
or disapproval and provide a summary of the basis for those elements
that are partially approved and partially disapproved. We also describe
the statutory provisions and other materials submitted by NDEP that we
are approving herein, and describe the consequences of our
disapprovals.
A. Summary of Approvals
EPA is approving Nevada's Infrastructure SIP Submittals with
respect to the following requirements:
Section 110(a)(2)(A): Emission limits and other control
measures.
Section 110(a)(2)(B): Ambient air quality monitoring/data
system.
Section 110(a)(2)(C) (in part): Program for enforcement of
control measures and regulation of new and modified stationary sources.
Section 110(a)(2)(D)(i) (in part): Interstate pollution
transport.
Section 110(a)(2)(D)(ii) (in part): Interstate pollution
abatement and international air pollution.
Section 110(a)(2)(E): Adequate resources and authority,
conflict of interest, and oversight of local and regional government
agencies.
Section 110(a)(2)(F) (in part): Stationary source
monitoring and reporting.
Section 110(a)(2)(G): Emergency episodes.
Section 110(a)(2)(H): SIP revisions.
Section 110(a)(2)(J) (in part): Consultation with
government officials, public notification, and prevention of
significant deterioration (PSD) and visibility protection.
Section 110(a)(2)(K) (in part): Air quality modeling and
submission of modeling data.
Section 110(a)(2)(L): Permitting fees.
Section 110(a)(2)(M): Consultation/participation by
affected local entities.
We are approving Nevada's Infrastructure SIP Submittals for the
Clark County portions of the SIP with respect to the requirements of
CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii),
110(a)(2)(J), and 110(a)(2)(K) related to PSD based upon our final
approval of certain SIP revisions for the review of new or modified
stationary sources for the Clark County portion of the SIP.\10\
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\10\ EPA's final rule on the Clark County NSR SIP revisions is
included in the docket of today's final rule. While the Clark County
NSR final rule is a limited approval and limited disapproval, the
permitting elements necessary for infrastructure SIP approval for
the Clark County portion of the SIP were all among those that were
approved.
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For section 110(a)(2)(C), we are approving Nevada's Infrastructure
SIP Submittals for all three jurisdictions (NDEP, Clark County, and
Washoe County) with respect to the requirement that the SIP include a
program to provide for enforcement of the emissions limitations
described in section 110(a)(2)(A).
With respect to the requirement of CAA section 110(a)(2)(D)(i)(II)
(regarding interference with other states' required measures to protect
visibility), EPA previously approved Nevada's interstate transport SIP
as satisfying this requirement for the 1997 ozone and 1997
PM2.5 NAAQS as part of EPA's action on Nevada's Regional
Haze SIP. See 77 FR 17334 at 17339 (March 26, 2012). For purposes of
the 2006 PM2.5 NAAQS, in today's final rule we are approving
Nevada's Infrastructure SIP Submittals as meeting the visibility
requirement of CAA section 110(a)(2)(D)(i)(II) for the 2006
PM2.5 NAAQS by virtue of Nevada's SIP-approved Regional Haze
Plan (77 FR 17334, March 26, 2012), which contains adequate provisions
to protect visibility in other states.
With respect to section 110(a)(2)(F), for the NDEP and Washoe
County portions of the SIP, we are approving Nevada's Infrastructure
SIP Submittals for all three subsections of section 110(a)(2)(F). We
note that EPA has approved three Nevada Administrative Code (NAC)
sections cited by NDEP in its 2012 Submittal, NAC sections 445B.315(3),
445B.3368, and 445B.346, in a separate rulemaking (see the pre-
publication version signed August 30, 2012 and included in the docket
of today's final rule). These provisions provide additional support for
the NDEP portion of the SIP as meeting the requirements of sections
110(a)(2)(F)(ii) and 110(a)(2)(F)(iii). For the Washoe County portion
of the SIP, our approval of subsections 110(a)(2)(F)(ii) and
110(a)(2)(F)(iii) is based on our approval of four Washoe County rules,
AQR 030.218, 030.230, 030.235, and 030.970, which were included in the
2012 Submittal, in a separate rulemaking (see the pre-publication
version signed September 14, 2012 and included in the docket of today's
final rule). With respect to the Clark County portion of the SIP, we
are approving the SIP for sections 110(a)(2)(F)(i) and (ii) based upon
our final approval of certain SIP revisions for the review of new or
modified stationary sources in Clark County.\11\
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\11\ As noted previously, we have placed a copy of the signed,
pre-publication version of the final rule approving the Clark County
SIP revisions in the docket for this rulemaking.
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B. Approval of Statutory Provisions and Other Materials
In connection with our approval, or partial approval, of Nevada's
Infrastructure SIP Submittals for these requirements as listed above,
we are approving into the Nevada SIP certain statutes and other
materials, which were included in the 2009 PM2.5 Supplement
and the 2012 Submittal.
First, with respect to section 110(a)(2)(E)(i) (i.e., necessary
assurances for adequate personnel, funding, and authority), EPA is
approving an interlocal agreement among the Washoe County District
Board of Health, Washoe County and the cities of Reno and Sparks
concerning the Washoe County District Health Department, and a
comprehensive revision to Section 12 (``Resources'') of the Nevada SIP.
The interlocal agreement was submitted as Attachment D of Nevada's 2009
PM2.5 Supplement and the revision to Section 12 was
submitted as Attachment A to Nevada's 2012 Submittal. NDEP's 2012
revision to Section 12 hereby replaces, in its entirety, the former SIP
version of Section 12, approved on May 31, 1972 (37 FR 10842), in the
Nevada SIP.
[[Page 64743]]
Second, in connection with our approval of Nevada's Infrastructure
SIP Submittals with respect to section 110(a)(2)(E)(ii) (i.e., State
board conflict of interest requirements under CAA section 128), EPA is
approving Nevada Revised Statutes (NRS) sections 232A.020, 281A.150,
281A.160, 281A.400, 281A.410, and 281A.420, as provided in Attachment B
of Nevada's 2012 Submittal, into the Nevada SIP.
Third and last, in connection with our approval of Nevada's
Infrastructure SIP Submittals with respect to section 110(a)(2)(J) (in
part) and (M), EPA is approving a comprehensive revision to Section 11
(``Intergovernmental Consultation'') of the Nevada SIP, which is
included as Attachment D to Nevada's 2012 Submittal. NDEP's 2012
revision to Section 11 hereby replaces, in its entirety, the former SIP
version of Section 11, approved on May 31, 1972 (37 FR 10842), in the
Nevada SIP.
Nevada's 2012 revision to Section 11 (``Intergovernmental
Consultation'') cites a number of statutes. Two of these, NRS section
445B.503 and NRS section 439.390, are included as exhibits to Section
11 and are new to the SIP.\12\ Another statute, NRS 445B.500, is
included in Attachment B to the 2012 Submittal as an update to the
former version of NRS 445B.500, which EPA had approved into the Nevada
SIP (71 FR 51766, August 31, 2006). We are approving NRS 445B.503, NRS
439.390, and the updated version of NRS 445B.500 into the Nevada SIP in
connection with our approval of the 2012 revision to Section 11 of the
Nevada SIP. The updated version of NRS 445B.500 hereby replaces, in its
entirety, the former SIP version of NRS 445B.500 in the Nevada SIP.
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\12\ In our proposed rule, we requested clarification as to
whether NDEP intends NRS 439.390 to be included in the Nevada SIP.
See 77 FR 46361 at 46367, footnote 26. NDEP's submittal on August
30, 2012 included NRS 439.390 in Attachment B (``Statutes for
Inclusion in the Nevada [Applicable SIP]''). As such we are
finalizing approval of NRS 439.390 into the Nevada SIP.
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C. Summary of Disapprovals
EPA is disapproving Nevada's Infrastructure SIP Submittals for the
1997 ozone, 1997 PM2.5, and 2006 PM2.5 NAAQS with
respect to the following infrastructure SIP requirements:
Section 110(a)(2)(C)(in part): Program for enforcement of
control measures and regulation of new and modified stationary sources.
Section 110(a)(2)(D)(i)(in part): Interstate pollution
transport.
Section 110(a)(2)(D)(ii)(in part): Interstate pollution
abatement and international air pollution.
Section 110(a)(2)(F)(in part): Stationary source
monitoring and reporting.
Section 110(a)(2)(J)(in part): Consultation with
government officials, public notification, and prevention of
significant deterioration (PSD) and visibility protection.
Section 110(a)(2)(K)(in part): Air quality modeling and
submission of modeling data.
As explained in our proposed rule and Overarching TSD, we are
disapproving Nevada's Infrastructure SIP Submittals for the NDEP and
Washoe County portions of the SIP with respect to the requirements of
CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii),
110(a)(2)(J), and 110(a)(2)(K) related to PSD because the Nevada SIP
does not fully satisfy the statutory and regulatory requirements for
PSD permit programs under part C of title I of the Act. Both NDEP and
WCHD-AQMD currently implement the Federal PSD program in 40 CFR 52.21
for all regulated NSR pollutants, pursuant to delegation agreements
with EPA. See 40 CFR 52.1485.\13\ 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.
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\13\ EPA fully delegated the implementation of the federal PSD
programs to NDEP on October 19, 2004 (``Agreement for Delegation of
the Federal Prevention of Significant Deterioration (PSD) Program by
the United States Environmental Protection Agency, Region 9 to the
Nevada Division of Environmental Protection''), as updated on
September 15, 2011, and to Washoe County on March 13, 2008
(``Agreement for Delegation of the Federal Prevention of Significant
Deterioration (PSD) Program by the United States Environmental
Protection Agency, Region 9 to the Washoe County District Health
Department'').
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With respect to the requirements regarding interstate transport in
CAA section 110(a)(2)(D)(i)(I) for the 1997 ozone and 1997
PM2.5 NAAQS, EPA previously approved an interstate transport
SIP submitted by Nevada as satisfying the requirements of CAA section
110(a)(D)(i)(I). See 72 FR 41629 (July 31, 2007). For the 2006 24-hour
PM2.5 NAAQS, in today's final rule we are partially
approving and partially disapproving Nevada's 2009 PM2.5
Submittal, and 2009 PM2.5 Supplement. We are partially
disapproving the submissions because they rely on irrelevant factors
and lack any technical analysis to support the State's conclusion with
respect to interstate transport. We are also partially approving the
submission, however, based on EPA's supplemental evaluation of relevant
technical information, which supports a finding that emissions from
Nevada do not significantly contribute to nonattainment or interfere
with maintenance of the 2006 24-hour PM2.5 NAAQS in any
other state and that the existing Nevada SIP is, therefore, adequate to
meet the requirements of CAA section 110(a)(2)(D)(i)(I) for the 2006
24-hour PM2.5 NAAQS. See our 2006 PM2.5 Transport
TSD.\14\
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\14\ The recent opinion vacating the Transport Rule, EME Homer
City Generation v. EPA, No. 11-1302 (DC Cir., August 21, 2012), does
not alter our conclusion that the existing Nevada SIP adequately
addresses this requirement. Nothing in the Homer City opinion
disturbs or calls into question that conclusion or the validity of
the technical information on which our August 3, 2012 proposal
relied--e.g., ambient PM2.5 levels at monitoring sites
representative of regional background in nearby states and relevant
meteorological and topographical information. In addition, nothing
in that opinion undermines our proposed conclusion, based on our
review of the available technical information, that emissions from
Nevada do not significantly contribute to nonattainment or interfere
with maintenance of the 2006 24-hour PM2.5 NAAQS in
another state.
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With respect to section 110(a)(2)(F), we are disapproving the Clark
County portion of the SIP for subsection 110(a)(2)(F)(iii) because
Clark County has repealed its regulation, Section 24, that formerly
addressed the correlation requirement of this subsection, without
submitting a SIP revision to replace it.
D. Consequences of Disapprovals
EPA takes a disapproval of a state plan very seriously. Rather than
implement a FIP, we believe that it is preferable, and preferred in the
provisions of the Clean Air Act, for states to implement the CAA
requirements through state provisions that are developed and adopted by
the state and approved into the SIP by EPA. A state plan need not
contain exactly the same provisions that EPA might require, but EPA
must be able to find that the state plan is consistent with the
requirements of the Act in accordance with its obligations under
section 110(k). Further, EPA's oversight role requires that it assure
consistent implementation of Clean Air Act requirements by states
across the country, even while acknowledging that individual decisions
from source to source or state to state may not have identical
outcomes. EPA believes these disapprovals are the only path that is
consistent with the Act at this time.
Under section 179(a) of the CAA, final disapproval of a submittal
that addresses a requirement of part D of title I of the CAA (CAA
sections 171-193) or is required in response to a finding of
substantial inadequacy as described in
[[Page 64744]]
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 SIP Submittals does not trigger mandatory sanctions
under CAA section 179.
In addition, CAA section 110(c)(1) provides that EPA must
promulgate a Federal Implementation Plan (FIP) within two years after
finding that a State has failed to make a required submission or
disapproving a State implementation plan submission in whole or in
part, unless EPA approves a SIP revision correcting the deficiencies
within that two-year period.
With respect to our partial approval and partial disapproval of
Nevada's submissions related to interstate transport under CAA section
110(a)(2)(D)(i)(I), we conclude that any FIP obligation resulting from
our final, partial disapproval is satisfied by our determination that
there is no deficiency in the SIP to correct. Such disapproval also
does not require any further action on Nevada's part given EPA's
conclusion that the SIP is adequate to meet the requirements of CAA
section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS.
With respect to our final disapproval of Nevada's Infrastructure
SIP Submittals for section 110(a)(2)(F)(iii) for the Clark County
portion of the SIP, today's action establishes a deadline two years
from the effective date of this action for EPA to promulgate a FIP,
unless EPA approves a SIP revision correcting the deficiency within
that two-year period.\15\ We encourage the state to submit a SIP
revision to address the deficiencies identified in this final rule and
we stand ready to work with the state to develop a revised plan.
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\15\ In our proposed rule, we did not explicitly state how EPA's
proposed disapproval of section 110(a)(2)(F)(iii) for the Clark
County portion of the SIP would trigger a new FIP obligation for
EPA. However, our proposed rule made clear that ``CAA section
110(c)(1) provides that EPA must promulgate a Federal Implementation
Plan (FIP) within two years after finding that a State has failed to
make a required submission or disapproving a State implementation
plan submission in whole or in part, unless EPA approves a SIP
revision correcting the deficiencies within that two-year period.''
(77 FR 46361 at 46370). By contrast, for our other proposed
disapprovals, we made clear that EPA's FIP obligation would be
satisfied ``by our determination that there is no deficiency in the
SIP to correct'' (for section 110(a)(2)(D)(i)(I) for the 2006
PM2.5 NAAQS; see 77 FR 46361 at 46370) and that the
``deficiencies are adequately addressed in both areas by the Federal
PSD program'' (for the PSD-related requirements of CAA sections
110(a)(2)(C), 110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), 110(a)(2)(J),
and 110(a)(2)(K) for the NDEP and Washoe County portions of the SIP;
see 77 FR 46361 at 46367).
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For all other final disapprovals of today's action (i.e., for the
PSD-related requirements of CAA sections 110(a)(2)(C),
110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), 110(a)(2)(J), and 110(a)(2)(K)
for the NDEP and Washoe County portions of the SIP), we conclude that
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 each jurisdiction by the
Federal PSD program, and therefore no further FIP obligation is
triggered by today's action.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866, Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and
is therefore not subject to review under the EO.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.,
because this partial approval and partial disapproval of SIP revisions
under CAA section 110 will not in-and-of itself create any new
information collection burdens but simply approves certain State
requirements, and disapproves certain other State requirements, for
inclusion into the SIP. Burden is defined at 5 CFR 1320.3(b).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. For purposes of assessing the impacts of 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-for-profit 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 and partial SIP disapproval under CAA section 110 will not in-
and-of itself create any new requirements but simply approves certain
State requirements, and disapproves certain other State requirements,
for inclusion into the SIP. Accordingly, it affords no opportunity for
EPA to fashion for small entities less burdensome compliance or
reporting requirements or timetables or exemptions from all or part of
the rule. Therefore, this action will not have a significant economic
impact on a substantial number of small entities.
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or tribal governments or the private
sector. EPA has determined that the partial approval and partial
disapproval action does not include a Federal mandate that may result
in estimated costs of $100 million or more to either State, local, or
tribal governments in the aggregate, or to the private sector. This
action approves certain pre-existing requirements, and disapproves
certain other pre-existing requirements, under State or local law, and
imposes no new requirements. Accordingly, no additional costs to State,
local, or tribal governments, or to the private sector, result from
this action.
E. Executive Order 13132, Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national
[[Page 64745]]
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
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP
on which EPA is proposing action would not 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. Thus,
Executive Order 13175 does not apply to this action.
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 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.
The EPA believes that this action is not subject to requirements of
Section 12(d) of NTTAA because application of those requirements would
be inconsistent with the Clean Air Act.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Population
Executive Order (EO) 12898 (59 FR 7629, Feb. 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA lacks the discretionary authority to address environmental
justice in this rulemaking.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 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. 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 November 23, 2012.
L. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by December 24, 2012. 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, Oxides of nitrogen, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Volatile
organic compounds.
Dated: September 28, 2012.
Jared Blumenfeld,
Regional Administrator, Region IX.
Therefore, 40 CFR Chapter I 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. Section 52.1470 in paragraph (e), the table is amended by:
0
a. Revising the entries for ``Section 11--Intergovernmental
Consultation,'' ``Section 12--Resources,'' and ``445B.500'';
0
b. Adding an entry for ``Attachment D--Inter-Local Agreement Supporting
CAA 110(a)(2)(A)-(M) Requirements'' after the entry for ``Section 11--
Intergovernmental Consultation'';
0
c. Adding entries for ``Enclosure 1--CAA 110(a)(2)(A)-(M) Requirements
in the Current Nevada State Implementation Plan (SIP) for 8-Hour
Ozone,'' ``Enclosure 1--CAA 110(a)(2)(A)-(M) Requirements in the
Current Nevada State Implementation Plan (SIP) for PM2.5,''
``Enclosure 1--CAA 110(a)(2)(A)-(M) Requirements in the Current Nevada
State Implementation Plan (SIP) for PM2.5,'' ``Attachment
A--Current CAA 110(a)(2)(A)-(M) Requirements in the Washoe County
Portion of the Nevada PM2.5 SIP,'' and ``Revisions to
Nevada's Clean Air Act Section 110(a)(2) Plan Submittals as of July
2012 (August 2012), excluding attachments A through D'' after the entry
for ``Adopted Lead Implementation Plan for the Truckee Meadows Basin,
4/26/84'';
[[Page 64746]]
0
d. Adding new table heading titled ``Nevada Revised Statutes, Title 18,
State Executive Department, Chapter 232A, Boards, Commissions and
Similar Bodies'' after the entry for ``0.039,'' and under the new
heading, adding an entry for ``232A.020'';
0
e. Adding new table heading titled ``Nevada Revised Statutes, Title 23,
Public Officers and Employees, Chapter 281A, Ethics in Government''
after the new entry for ``232A.020,'' and under the new heading, adding
entries in numerical order for ``281A.150,'' ``281A.160,''
``282A.400,'' ``281A.410,'' and ``281A.420'';
0
f. Adding new table heading titled ``Nevada Revised Statutes, Title 40,
Public Health and Safety, Chapter 439, Administration of Public
Health'' after the entry for ``366.060,'' and under the new heading,
adding an entry for ``439.390''; and
0
g. Adding an entry for ``445B.503'' after the entry for ``445B.500.''
Sec. 52.1470 Identification of plan.
* * * * *
(e) * * *
EPA-Approved Nevada Nonregulatory and Quasi-Regulatory Measures
----------------------------------------------------------------------------------------------------------------
Applicable State
Name of SIP provision geographic or submittal EPA approval date Explanation
nonattainment area date
----------------------------------------------------------------------------------------------------------------
Air Quality Implementation Plan for the State of Nevada
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 11--Intergovernmental State-wide.......... 8/30/12 [Insert Federal Submitted as
Consultation. Register page attachment D to
number where the NDEP's August 30,
document begins] 10/ 2012 SIP revision
23/12. submittal.
----------------------------------------------------------------------------------------------------------------
Attachment D--Inter-Local Washoe County....... 12/4/09 [Insert Federal Submitted as
Agreement Supporting CAA Register page attachment D to
110(a)(2)(A)-(M) Requirements. number where the NDEP's December 4,
document begins] 10/ 2009 SIP revision
23/12. submittal.
----------------------------------------------------------------------------------------------------------------
Section 12--Resources............ State-wide.......... 8/30/12 [Insert Federal Submitted as
Register page attachment A to
number where the NDEP's August 30,
document begins] 10/ 2012 SIP revision
23/12. submittal.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Enclosure 1--CAA 110(a)(2)(A)-(M) State-wide, within 2/1/08 [Insert Federal ``Infrastructure''
Requirements in the Current NDEP jurisdiction. Register page SIP for the 1997 8-
Nevada State Implementation Plan number where the Hour ozone
(SIP) for 8-Hour Ozone. document begins] 10/ standard.
23/12. Enclosures (2) and
(3) include copies
of the regulatory
and statutory
provisions
previously approved
in the Nevada SIP.
----------------------------------------------------------------------------------------------------------------
Enclosure 1--CAA 110(a)(2)(A)-(M) State-wide, within 2/26/08 [Insert Federal ``Infrastructure''
Requirements in the Current NDEP jurisdiction. Register page SIP for the 1997
Nevada State Implementation Plan number where the PM2.5 standard.
(SIP) for PM2.5. document begins] 10/ Enclosures (2) and
23/12. (3) include copies
of the regulatory
and statutory
provisions
previously approved
in the Nevada SIP.
----------------------------------------------------------------------------------------------------------------
Enclosure 1-CAA 110(a)(2)(A)-(M) State-wide, within 9/15/09 [Insert Federal ``Infrastructure''
Requirements in the Current NDEP jurisdiction. Register page SIP for the 2006
Nevada State Implementation Plan number where the PM2.5 standard.
(SIP) for PM2.5. document begins] 10/ Enclosures (2) and
23/12. (3) include copies
of the regulatory
and statutory
provisions
previously approved
in the Nevada SIP.
----------------------------------------------------------------------------------------------------------------
Attachment A--Current CAA Washoe County....... 12/04/09 [Insert Federal Attachment B
110(a)(2)(A)-(M) Requirements in Register page includes Washoe
the Washoe County Portion of the number where the County regulations,
Nevada PM2.5 SIP. document begins] 10/ that are addressed
23/12. in separate
rulemakings.
Attachment C is the
PSD delegation
agreement between
Washoe County
District Health
Department and EPA
Region IX.
Attachment D
(``Inter-Local
Agreement
Supporting CAA
110(a)(2)(A)-(M)
Requirements'') is
approved into the
SIP and listed
separately in this
table.
----------------------------------------------------------------------------------------------------------------
Revisions to Nevada's Clean Air State-wide.......... 8/30/12 [Insert Federal Attachment A
Act Section 110(a)(2) Plan Register page (``Section 12-
Submittals as of July 2012 number where the Resources''), the
(August 2012), excluding document begins] 10/ individual
attachments A through D. 23/12. statutory
provisions in
attachment B
(``Statutes for
Inclusion in
Nevada's ASIP''),
and attachment D
(``Section 11--
Intergovernmental
Consultation'') are
listed separately
in this table.
Attachment C was
submitted for
information only
and not for
incorporation into
Nevada's SIP.
[[Page 64747]]
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Nevada Revised Statutes, Title 18, State Executive Department, Boards, Chapter 232A, Commissions and Similar
Bodies
----------------------------------------------------------------------------------------------------------------
232A.020......................... Residency 8/30/12 [Insert Federal Submitted in
requirement for Register page attachment B to
appointment; terms number where the NDEP's August 30,
of members; document begins] 10/ 2012 SIP revision
vacancies; 23/12. submittal. (Nevada
qualification of Revised Statutes,
member appointed as Volume 14, 2011, as
representative of published by the
general public; Legislative
gubernatorial Counsel, State of
appointee Nevada, section
prohibited from 232A.020).
serving on more
than one board,
commission or
similar body.
----------------------------------------------------------------------------------------------------------------
Nevada Revised Statutes, Title 23, Public Officers and Employees, Chapter 281A, Ethics in Government
----------------------------------------------------------------------------------------------------------------
281A.150......................... ``Public employee'' 8/30/12 [Insert Federal Submitted in
defined. Register page attachment B to
number where the NDEP's August 30,
document begins] 10/ 2012 SIP revision
23/12. submittal. (Nevada
Revised Statutes,
Volume 18, 2011, as
published by the
Legislative
Counsel, State of
Nevada, section
281A.150).
----------------------------------------------------------------------------------------------------------------
281A.160......................... ``Public officer'' 8/30/12 [Insert Federal Submitted in
defined. Register page attachment B to
number where the NDEP's August 30,
document begins] 10/ 2012 SIP revision
23/12. submittal. (Nevada
Revised Statutes,
Volume 18, 2011, as
published by the
Legislative
Counsel, State of
Nevada, section
481A.160).
----------------------------------------------------------------------------------------------------------------
281A.400......................... General 8/30/12 [Insert Federal Submitted in
requirements; Register page attachment B to
exceptions. number where the NDEP's August 30,
document begins] 10/ 2012 SIP revision
23/12. submittal. (Nevada
Revised Statutes,
Volume 18, 2011, as
published by the
Legislative
Counsel, State of
Nevada, section
281A.400).
----------------------------------------------------------------------------------------------------------------
281A.410......................... Limitations on 8/30/12 [Insert Federal Submitted in
representing or Register page attachment B to
counseling private number where the NDEP's August 30,
persons before document begins] 10/ 2012 SIP revision
public agencies; 23/12. submittal. (Nevada
disclosure required Revised Statutes,
by certain public Volume 18, 2011, as
officers. published by the
Legislative
Counsel, State of
Nevada, section
281A.410).
----------------------------------------------------------------------------------------------------------------
281A.420......................... Requirements 8/30/12 [Insert Federal Submitted in
regarding Register page attachment B to
disclosure of number where the NDEP's August 30,
conflicts of document begins] 10/ 2012 SIP revision
interest and 23/12. submittal. (Nevada
abstention from Revised Statutes,
voting because of Volume 18, 2011, as
certain types of published by the
conflicts; effect Legislative
of abstention on Counsel, State of
quorum and voting Nevada, section
requirements; 281A.420).
exceptions.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Nevada Revised Statutes, Title 40, Public Health and Safety, Chapter 439, Administration of Public Health
----------------------------------------------------------------------------------------------------------------
439.390.......................... District board of 8/30/12 [Insert Federal Submitted in
health: Register page attachment B, and
Composition; number where the as an exhibit to
qualifications of document begins] 10/ attachment D, to
members. 23/12. NDEP's August 30,
2012 SIP revision
submittal. (Nevada
Revised Statutes,
Volume 27, 2011, as
published by the
Legislative
Counsel, State of
Nevada, section
439.390).
[[Page 64748]]
* * * * * * *
----------------------------------------------------------------------------------------------------------------
445B.500......................... Establishment and 8/30/12 [Insert Federal Submitted in
administration of Register page attachment B to
program; contents number where the NDEP's August 30,
of program; document begins] 10/ 2012 SIP revision
designation of air 23/12. submittal. (Nevada
pollution control Revised Statutes,
agency of county Volume 28, 2011, as
for purposes of published by the
federal act; powers Legislative
and duties of local Counsel, State of
air pollution Nevada, section
control board; 445B.500).
notice of public
hearings;
delegation of
authority to
determine
violations and levy
administrative
penalties; cities
and smaller
counties;
regulation of
certain electric
plants prohibited.
----------------------------------------------------------------------------------------------------------------
445B.503......................... Local air pollution 8/30/12 [Insert Federal Submitted in
control board in Register page attachment B, and
county whose number where the as an exhibit to
population is document begins] 10/ attachment D, to
700,000 or more: 23/12]. NDEP's August 30,
Cooperation with 2012 SIP revision
regional planning submittal. (Nevada
coalition and Revised Statutes,
regional Volume 28, 2011, as
transportation published by the
commission; Legislative
prerequisites to Counsel, State of
adoption or Nevada, section
amendment of plan, 445B.503).
policy or program.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Section 52.1472 is amended by adding paragraphs (d), (e), and (f) to
read as follows:
Sec. 52.1472 Approval status.
* * * * *
(d) 1997 8-hour ozone NAAQS: The SIPs submitted on February 1, 2008
and August 30, 2012 are partially disapproved for Clean Air Act (CAA)
elements 110(a)(2)(C), (D)(ii), (J) and (K) for the Nevada Division of
Environmental Quality (NDEP) and Washoe County portions of the Nevada
SIP; and for CAA element 110(a)(2)(F) for the Clark County portion of
the Nevada SIP.
(e) 1997 P2.5 NAAQS: The SIPs submitted on February 26, 2008 and
August 30, 2012 are partially disapproved for CAA elements
110(a)(2)(C), (D)(ii), (J) and (K) for the NDEP and Washoe County
portions of the Nevada SIP; and for CAA element 110(a)(2)(F) for the
Clark County portion of the Nevada SIP.
(f) 2006 PM2.5 NAAQS: The SIPs submitted on September 15, 2009,
December 4, 2009, and August 30, 2012 are partially disapproved for CAA
elements 110(a)(2)(C), (D)(i)(II) (interfere with measures in any other
state to prevent significant deterioration of air quality), (D)(ii),
(J) and (K) for the NDEP and Washoe County portions of the Nevada SIP;
for CAA element 110(a)(2)(D)(i)(I) for the NDEP, Washoe County, and
Clark County portions of the Nevada SIP; and for CAA element
110(a)(2)(F) for the Clark County portion of the Nevada SIP.
[FR Doc. 2012-25558 Filed 10-22-12; 8:45 am]
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