The Regional Administrator for EPA Region 9, Jared Blumenfeld, signed the following notice on August 30, 2012, 

and EPA is submitting it for publication in the Federal Register (FR). We have taken steps to ensure the accuracy of 

this version, but it is not the official version. Please refer to the official version in a forthcoming FR publication, 

which will appear on the Government Printing Office’s FDSys website

(https://fdsys.gpo.gov/fdsys/search/home.action) and on Regulations.gov (http://www.regulations.gov) in Docket 

No. EPA-R09-OAR-2012-0141.

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0141; FRL-____-_]

Approval and Promulgation of Implementation Plans; Revisions to 

the Nevada State Implementation Plan; Stationary Source Permits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is finalizing a limited approval and limited 

disapproval of revisions to the applicable state implementation 

plan for the State of Nevada. The revisions include new or 

amended State rules governing applications for, and issuance of, 

permits for stationary sources, but not including review and 

permitting of major sources and major modifications under parts 

C and D of title I of the Clean Air Act. EPA is taking this 

action under the Clean Air Act obligation to take action on 

State submittals of revisions to state implementation plans. The 

intended effect of the limited approval and limited disapproval 

action is to update the applicable state implementation plan

with current State rules with respect to permitting, and to set 

the stage for remedying deficiencies in the permitting rules 

with respect to certain new or revised national ambient air 

quality standards. This limited disapproval action would not 

trigger sanctions under section 179 of the Clean Air Act but 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

2

does trigger an obligation on EPA to promulgate a Federal 

Implementation Plan unless the State of Nevada corrects the 

deficiencies, and EPA approves the related plan revisions,

within two years of the final action. 

EFFECTIVE DATE: This rule is effective on [Insert date 30 days 

from the date of publication in the Federal Register].

DOCKET: EPA has established docket number EPA-R09-OAR-2012-0141

for this action. The index to the docket for this action is 

available electronically at 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 at either location (e.g., CBI). To 

inspect the hard copy materials, please schedule an appointment 

during normal business hours with the contact listed in the FOR 

FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Laura Yannayon, EPA Region IX, 

75 Hawthorne Street (AIR-3), San Francisco, CA 94105, phone 

number (415) 972-3534, fax number (415) 947-3579, or by email at 

yannayon.laura@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, the terms 

“we,” “us,” and “our” refer to EPA.
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3

Table of Contents 

I. Proposed Action

A. Summary of Proposed Action and Description of SIP 

Submittals

B. Resolution of Prior Deficiencies

C. New Deficiencies

II. Public Comment on Proposed Action

III. Final Action

IV. Statutory and Executive Order Reviews

I. Proposed Action

A. Summary of Proposed Action and Description of SIP 

Submittals

On June 28, 2012 (77 FR 38557), under section 110(k) of the 

Clean Air Act (CAA or "Act"), EPA proposed a limited approval 

and limited disapproval of revisions to the Nevada State 

Implementation Plan (SIP). The revisions, which were submitted 

by the Nevada Division of Environmental Protection (NDEP) on 

January 24, 2011, include certain new or amended State rules 

[i.e., certain sections of Nevada Administrative Code (NAC)] 

that govern applications for, and issuance of, permits for 

stationary sources [a process referred to herein as “New Source 

Review” (NSR) and rules referred to herein as “NSR rules”].1

 1

 We note that the stationary source permitting rules that are the subject of 
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4

NDEP’s January 24, 2011 submittal also includes a rescission of 

one definition from the existing SIP (the definition of “special 

mobile equipment”).

As described in our June 28, 2012 proposed rule (77 FR at 

38557), on November 9, 2011, NDEP amended the January 24, 2011 

submittal by replacing an NSR rule (NAC 445B.3457) that had been 

submitted on January 24, 2011 as a temporary regulation with the 

version of the rule that had been adopted by the State 

Environmental Commission (SEC) as a permanent regulation. On May 

21, 2012, NDEP further amended the January 24, 2011 submittal by 

submitting a small set of additional NSR-related rules (and one 

statutory definition), certain clarifications concerning the 

previously-submitted NSR rules, and documentation supporting the 

selection of emissions-based thresholds for triggering the 

public notice requirements for draft permits for certain source 

modifications.

Table 1 below lists the rules (and one statutory 

definition) that were submitted by NDEP on January 24, 2011, 

November 9, 2011, and May 21, 2012 and on which EPA is taking 

final limited approval and limited disapproval action in this 

 today's final rule are not intended to satisfy the requirements for preconstruction review and permitting of major sources or major modifications 

under part C (“Prevention of Significant Deterioration of air quality”) or 

part D (“Plan requirements for nonattainment areas”) of title I of the Clean 

Air Act. 
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5

document.

Table 1 – Submitted rules (and statutory definition) 

governing NSR for stationary sources under NDEP jurisdiction

Submitted 

rule

Title Adoption 

Date

Submittal 

Date

NAC 445B.003 “Adjacent properties” 

defined.

11/03/93 01/24/11

NAC 445B.0035 “Administrative revision to 

a Class I operating permit” 

defined.

08/19/04 01/24/11

NAC 445B.007 “Affected state” defined. 11/03/93 01/24/11

NAC 445B.013 “Allowable emissions” 

defined.

10/04/05 01/24/11

NAC 445B.014 “Alteration” defined. 10/03/95 01/24/11

NAC 445B.016 “Alternative operating 

scenarios” defined.

10/03/95 01/24/11

NAC 445B.019 “Applicable requirement” 

defined.

06/17/10 01/24/11

NAC 445B.035 “Class I-B application” 

defined. 

10/03/95 01/24/11

NAC 445B.036 “Class I source” defined. 08/19/04 01/24/11

NAC 445B.037 “Class II source” defined. 06/17/10 01/24/11

NAC 445B.038 “Class III source” defined. 06/17/10 01/24/11

NAC 445B.0423 “Commence” defined. 03/18/08 05/21/12

NAC 445B.044 “Construction” defined. 10/04/05 01/24/11

NAC 445B.046 “Contiguous property” 

defined.

09/16/76 01/24/11

NAC 445B.054 “Dispersion technique” 

defined.

10/04/05 01/24/11

NAC 445B.064 “Excessive concentration” 

defined.

10/04/05 01/24/11

NAC 445B.066 “Existing stationary 

source” defined.

10/03/95 01/24/11

NAC 445B.068 “Facility” defined. 10/03/95 01/24/11

NAC 445B.069 “Federally enforceable” 

defined.

03/18/08 01/24/11

NAC 445B.070 “Federally enforceable 

emissions cap” defined.

11/03/93 01/24/11

NAC 445B.082 “General permit” defined. 10/03/95 01/24/11

NAC 445B.083 “Good engineering practice 

stack height” defined.

10/04/05 01/24/11
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have taken steps to ensure the accuracy of this version, but it is not the official version.

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NAC 445B.087 “Increment” defined. 11/03/93 01/24/11

NAC 445B.093 “Major modification” 

defined.

08/19/04 01/24/11

NAC 445B.094 “Major source” defined. 05/10/01 01/24/11

NAC 445B.0945 “Major stationary source” 

defined. 

08/19/04 01/24/11

NAC 445B.099 “Modification” defined. 10/03/95 01/24/11

NAC 445B.104 “Motor vehicle” defined. 05/10/01 01/24/11

NRS 485.050 “Motor vehicle” defined. As 

amended 

in 2003

05/21/12

NAC 445B.107 “Nearby” defined. 10/04/05 01/24/11

NAC 445B.108 “New stationary source” 

defined. 

10/03/95 01/24/11

NAC 445B.117 “Offset” defined. 10/03/95 01/24/11

NAC 445B.123 “Operating permit” defined. 06/17/10 01/24/11

NAC 445B.124 “Operating permit to 

construct” defined.

11/19/02 01/24/11

NAC 445B.1345 “Plantwide applicability 

limitation” defined.

06/17/10 01/24/11

NAC 445B.138 “Potential to emit” 

defined.

10/05/10 01/24/11

NAC 445B.142 “Prevention of significant 

deterioration of air 

quality” defined.

11/03/93 01/24/11

NAC 445B.147 “Program” defined. 11/03/93 01/24/11

NAC 445B.154 “Renewal of an operating 

permit” defined.

11/03/93 01/24/11

NAC 445B.156 “Responsible official” 

defined.

06/17/10 01/24/11

NAC 445B.157 “Revision of an operating 

permit” defined.

08/19/04 01/24/11

NAC 445B.179 “Special mobile equipment” 

defined. 

10/05/10

(repealed

)

01/24/11

NAC 445B.187 “Stationary source” 

defined.

10/05/10 01/24/11

NAC 445B.194 “Temporary source” defined. 05/10/01 01/24/11

NAC 445B.200 “Violation” defined. 11/03/93 05/21/12

NAC 445B.287 Operating permits: General 

requirements; exception; 

restriction on transfers.

06/17/10 01/24/11

NAC 

445B.287(2)

[Provision addressing the 

operating permit 

requirements for certain 

06/17/10 05/21/12
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types of Class I sources]

NAC 445B.288 Operating permits: 

Exemptions from 

requirements; insignificant 

activities.

03/18/08 01/24/11

NAC 445B.295 Application: General 

requirements.

09/06/06 01/24/11

NAC 445B.297 Application: Submission; 

certification; additional 

information.

03/08/06 01/24/11

NAC 445B.298 Application: Official date 

of submittal.

06/17/10 01/24/11

NAC 445B.305 Operating permits: 

Imposition of more 

stringent standards for 

emissions.

06/17/10 01/24/11

NAC 445B.308 Prerequisites and 

conditions for issuance of 

certain operating permits; 

compliance with applicable 

state implementation plan.

03/18/08 01/24/11

NAC 445B.310 Environmental evaluation: 

Applicable sources and 

other subjects; exemption.

09/06/06 01/24/11

NAC 445B.311 Environmental evaluation: 

Contents; consideration of 

good engineering practice 

stack height.

10/05/10 01/24/11

NAC 445B.313 Method for determining heat 

input: Class I sources.

10/05/10 01/24/11

NAC 445B.3135 Method for determining heat 

input: Class II sources.

11/19/02 01/24/11

NAC 445B.314 Method for determining heat 

input: Class III sources.

11/19/02 01/24/11

NAC 445B.315 Contents of operating 

permits: Exception for 

operating permits to 

construct; required 

conditions.

03/08/06 01/24/11

NAC 445B.318 Operating permits: 

Requirement for each 

source; form of 

application; issuance or 

denial; posting.

03/08/06 01/24/11

NAC 445B.319 Operating permits: 08/19/04 01/24/11
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Administrative amendment.

NAC 445B.325 Operating permits:

Termination, reopening and 

revision, revision, or 

revocation and reissuance. 

06/17/10 01/24/11

NAC 445B.331 Request for change of 

location of emission unit.

09/06/06 01/24/11

NAC 445B.3361 General requirements. 06/17/10 01/24/11

NAC 445B.3363 Operating permit to 

construct: Application.

12/09/09 01/24/11

NAC 

445B.33637

Operating permit to 

construct for approval of 

plantwide applicability 

limitation: Application.

08/19/04 01/24/11

NAC 445B.3364 Operating permit to 

construct: Action by 

Director on application; 

notice; public comment and 

hearing.

12/09/09 01/24/11

NAC 445B.3365 Operating permit to 

construct: Contents; 

noncompliance with 

conditions.

03/08/06 01/24/11

NAC 

445B.33656

Operating permit to 

construct for approval of 

plantwide applicability 

limitation: Contents; 

noncompliance with 

conditions.

03/08/06 01/24/11

NAC 445B.3366 Expiration and extension of 

operating permit to 

construct; expiration and 

renewal of plantwide 

applicability limitation.

09/06/06 01/24/11

NAC 445B.3368 Additional requirements for 

application; exception.

12/09/09 01/24/11

NAC 445B.3375 Class I-B application: 

Filing requirement.

09/06/06 01/24/11

NAC 445B.3395 Action by Director on 

application; notice; public 

comment and hearing; 

objection by Administrator; 

expiration of permit.

03/18/08 01/24/11

NAC 445B.340 Prerequisites to issuance, 

revision or renewal of 

03/18/08 01/24/11
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9

permit.

NAC 445B.342 Certain changes authorized 

without revision of permit; 

notification of authorized 

changes.

10/04/05 01/24/11

NAC 445B.3425 Minor revision of permit. 08/19/04 01/24/11

NAC 445B.344 Significant revision of 

permit.

11/19/02 01/24/11

NAC 445B.3441 Administrative revision of 

permit to incorporate 

conditions of certain 

permits to construct.

09/06/06 01/24/11

NAC 445B.3443 Renewal of permit. 11/12/08 01/24/11

NAC 445B.3447 Class I general permit 11/19/02 05/21/12

NAC 445B.3453 Application: General 

requirements. 

03/08/06 01/24/11

NAC 445B.3457 Action by Director on 

application; notice; public 

comment and hearing; 

expiration of permit.

10/05/11 11/09/11

NAC 445B.346 Required contents of 

permit.

10/03/95 01/24/11

NAC 445B.3465 Application for revision. 10/04/05 01/24/11

NAC 445B.3473 Renewal of permit. 11/12/08 01/24/11

NAC 445B.3477 Class II general permit. 03/18/08 01/24/11

NAC 445B.3485 Application: General 

requirements.

09/06/06 01/24/11

NAC 445B.3487 Action by Director on 

application; expiration of 

permit.

09/06/06 01/24/11

NAC 445B.3489 Required contents of 

permit. 

09/06/06 01/24/11

NAC 445B.3493 Application for revision. 09/18/01 01/24/11

NAC 445B.3497 Renewal of permit. 11/12/08 01/24/11

In our proposed rule (77 FR 38557, at 38559), we discussed

the regulatory history of the Nevada SIP and identified the 

existing Nevada SIP rules governing NSR for stationary sources 

under NDEP jurisdiction (see table 2).

Table 2 – Existing SIP rules governing NSR for stationary 
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sources under NDEP jurisdiction

Nevada Air Quality Regulations 

(NAQR) or Nevada Administrative 

Code (NAC)

Fed. Reg. Citation and EPA 

Approval Date

NAQR article 1.36 - Commenced 43 FR 36932; (August 21, 

1978)

NAQR article 1.42 – Construction 43 FR 36932; (August 21, 

1978)

NAQR article 1.43 – Contiguous 

property.

43 FR 36932; (August 21, 

1978)

NAQR article 1.72 – Existing 

facility

43 FR 36932; (August 21, 

1978)

NAQR article 1.104 – Major 

stationary source.

43 FR 36932; (August 21, 

1978)

NAQR article 1.109 – Modification 43 FR 36932; (August 21, 

1978)

NAQR article 1.111 – Motor vehicle 43 FR 36932; (August 21, 

1978)

NAC 445.559 – “Operating permit” 

defined

49 FR 11626; (March 27, 1984)

NAQR article 1.182 – Special 

mobile equipment

43 FR 36932; (August 21, 

1978)

NAQR article 1.187 - Stationary 

source.

43 FR 36932; (August 21, 

1978)

NAC 445.649 - “Violation” defined. 49 FR 11626; (March 27, 1984)

NAQR article 3.1.6 [“Application 

forms for requesting the issuance 

of either a registration 

certificate or an operating permit 

can be obtained from the 

Director.”) 

43 FR 1341; (January 9, 1978)

NAC 445.704 Registration 

certificates and operating permits 

required.

49 FR 11626; (March 27, 1984)

NAC 445.705 Exemptions. 49 FR 11626; (March 27, 1984)

NAC 445.706(1) Application date; 

payment of fees.

49 FR 11626; (March 27, 1984)

NAC 445.707 Registration 

certificates: Prerequisite; 

application; fee; issuance, 

denial; expiration.

49 FR 11626; (March 27, 1984)

NAC 445.712 Operating permits: 

Prerequisite; application; fee; 

issuance, denial; posting.

49 FR 11626; (March 27, 1984)
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NAC 445.713 Operating permits: 

Renewal.

49 FR 11626; (March 27, 1984)

NAC 445.714 Operating permits: 

Replacement of lost or damaged 

permits.

49 FR 11626; (March 27, 1984)

NAC 445.715 Operating permits: 

Revocation.

49 FR 11626; (March 27, 1984)

NAC 445.716 Operating permits: 

Change of location.

49 FR 11626; (March 27, 1984)

NAQR article 13.1 (“General 

Provisions for the Review of New 

Sources”), subsection 13.1.3(1)

46 FR 21758; (April 14, 1981)

NAQR article 13.1 (“General 

Provisions for the Review of New 

Sources”), subsections 13.1.4, 

13.1.5, 13.1.6, and 13.1.7

40 FR 13306; (March 26, 1975)

NAQR article 13.2 [applicability 

thresholds for environmental 

evaluations (EEs)], subsections

13.2.3 and 13.2.4

47 FR 27070; (June 23, 1982)

NAQR article 13.3 [content 

requirements for EEs], subsection

13.3.1, 13.3.1.1, 13.3.1.2.2

47 FR 27070; (June 23, 1982)

We also described the previous version of the State's NSR 

rules that we disapproved. See 73 FR 20536; (April 16, 2008). 

Our 2008 final disapproval of the previous version of the NSR 

rules provides the context for this rulemaking in that our 

evaluation of the re-submitted NSR rules focused on changes the 

 2

 NDEP’s NSR SIP retains certain nonattainment NSR provisions including the 

definition of the term, “lowest achievable emission rate” (LAER), and NAQR 

article 13.1.3(2) in the SIP. NAQR article 13.1.1 establishes an 

environmental evaluation (EE) requirement, and NAQR article 13.1.3(2) 

establishes the LAER requirement. LAER is defined to apply to applicants who 

are required to submit EEs, and such applicants are identified by emissionsbased threshold values in article 13.2, 13.2.1, and 13.2.2, submitted on July 

24, 1979 and approved on June 23, 1982 (47 FR 27070). Thus, the existing SIP 

definition for LAER, NAQR articles 13.1.1, 13.2, 13.2.1, and 13.2.2 must be 

retained in the SIP to properly interpret and apply the major source 

nonattainment requirements in NAQR article 13.1.3(2).
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State had made in response to the findings in our 2008 final 

rule.

As discussed further below, in our proposed rule, we found 

that the State had adequately addressed all of the previouslyidentified deficiencies in the NSR rules but new deficiencies 

related to the new or revised PM2.5 and Pb national ambient air 

quality standards (NAAQS) prevent us from proposing a full 

approval of the rules. Therefore, we proposed a limited approval 

and limited disapproval of the submitted NSR rules. We did so 

based also on our finding that, while the rules did not meet all 

of the applicable requirements, the rules would represent an 

overall strengthening of SIP by clarifying and enhancing the NSR 

permitting requirements.

B. Resolution of Prior Deficiencies

In our June 28, 2012 proposed rule, we found that State had 

adopted rule revisions or provided sufficient explanation and 

documentation to fully address the 10 specific deficiencies that 

we found in the rules as set forth in our April 2008 final rule. 

First, we concluded that new or amended rules submitted for 

approval, including NAC 445B.0423 (“Commence” defined), NAC 

445B.069 (“Federally enforceable” defined), NAC 445B.287, 

subsection (2) (Provision addressing the operating permit 

requirements for certain types of Class I sources), NRS 485.050 
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("Motor vehicle" defined), and NAC 445B.083 (“Good engineering 

practice stack height” defined) adequately addressed the 

deficiencies related to the use of undefined terms or incorrect 

citations, the reliance on rules or statutory provisions that 

had not been submitted for approval as part of the SIP, or the 

confusion caused by submittal of multiple versions of the same 

rule.

Second, we concluded that NAC 445B.138 ("Potential to emit" 

defined), as amended, adequately addressed the deficiency in 

this definition related to the limits that qualify for treatment

as part of a stationary source's design for the purposes of 

determining its potential to emit. 

Third, by amending NAC 445B.187 ("Stationary source" 

defined) to delete the exclusion for “special mobile equipment,” 

the State Environmental Commission (SEC) adequately addressed 

the deficiency related to the necessary breadth of the 

definition of “stationary source” for NSR purposes.

Fourth, we concluded that amendments to NAC 445B.313 

(Method for determining heat input: Class I sources3

) adequately 

 3

 EPA generally refers to stationary sources with potentials to emit 100 tons 

per year or more of criteria pollutants (those for which national ambient air 

quality standards have been promulgated, such as, e.g., ozone, carbon 

monoxide, and particulate matter) as “major sources” and such sources with 

potentials to emit less than 100 tons per year as “minor sources.” Generally, 

speaking, the NSR program adopted by the Nevada SEC relies on the term “class 

I” sources to refer to “major sources” and “class II” and “class III” sources 

to refer to “minor sources.” In Nevada’s NSR program, generally speaking, 
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14

addressed the deficiency related to the use of maximum heat 

input for applicability determination purposes with respect to 

combustion sources.

Fifth, we concluded, based on NDEP's explanation, that NAC 

445B.331 (“Request for change of location of emission unit”) 

need not be amended to address the deficiency that we had 

identified previously.

Sixth, we concluded that amendments to NAC 445B.3477 

(“Class II general permit”) were adequate to resolve the 

deficiency related to public participation requirements for 

issuing such permits, and that, based on NDEP's explanation, no 

further amendments in the rule were necessary.

Seventh, we concluded that amendments to NAC 445B.311

(“Environmental evaluation: Required information”) adequately 

addressed the deficiency related to EPA approval for the use of 

a modification of, or substitution for, an EPA-approved model 

specified in appendix W of 40 CFR part 51. 

Eighth, we concluded that amendments to NAC 445B.3457 

("Action by Director on application; notice; public comment and 

hearing; expiration of permit") adequately addressed the 

deficiencies related to public review of new or modified class 

 “class III” sources are non-exempt sources with potentials to emit of less 

than 5 tons per year of criteria pollutants, while “class II” sources are 

those sources that are covered under the NSR rules but that are neither 

“class I” or “class III” sources.
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II sources, notification to the air pollution control agencies 

for Washoe County or Clark County for class II sources proposed 

to be constructed or modified in Washoe County or Clark County, 

respectively, and public participation for new or modified 

sources of lead with potentials to emit 5 tons per year or more. 

In so concluding, we found that the emission-based thresholds 

that the SEC has established in NAC 445B.3457 to identify class 

II permit revisions that are subject to the public participation 

requirement were acceptable under 40 CFR 51.161 ("Public 

availability of information") because we believed that the 

emissions-based thresholds represented well-defined objective 

criteria and because we found that the thresholds established in 

NAC 445B.3457 were reasonably calculated to exclude from 

mandatory public participation only less environmentally 

significant sources and modifications.

In addition, with respect to public participation 

associated with permits for new class II sources and for class 

II modifications, we noted that the SEC also revised NAC 

445B.3457 to provide for notification to the public through 

means (a state website and mailing list) other than through the 

traditional newspaper notice. We concluded that the requirement 

to provide the required notice by “prominent advertisement” in 

40 CFR 51.161(b)(3) for new or modified minor sources (other 
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16

than synthetic minor sources) is media neutral and can be met by 

means other than, or in combination with, the traditional 

newspaper notice.4 See Memorandum dated April 17, 2012 from Janet 

McCabe, Principal Deputy Assistant Administrator, EPA Office of 

Air and Radiation, to Regional Administrators, Regions 1-10, 

titled “Minor New Source Review Program Public Notice 

Requirements under 40 CFR 51.161(b)(3).” With respect to NAC 

445B.3457, we concluded that NDEP's provision for notification 

through an Internet website designed to give general public 

notice and through a mailing list developed to include 

individuals that have requested to be included on such a list, 

with one exception, satisfied the requirement to provide the 

public with notice through “prominent advertisement” in the area 

affected.

We believed that notification of proposed permit actions 

for one category of sources, synthetic minor sources, i.e., 

sources that have taken enforceable limitations to restrict 

their potential to emit below major source thresholds, must be 

made through traditional means of notification (i.e., newspaper 

notice) and preferably, should be made through traditional and 

 4

 As noted in footnote 3, above, “minor sources” are sources that have the 

potential to emit regulated NSR pollutants in amounts that are less than the 

applicable major source thresholds. Synthetic minor sources are those sources 

that have the potential to emit regulated NSR pollutants at or above the 

major source thresholds, but that have taken enforceable limitations to 

restrict their potential to emit below such thresholds. 
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electronic means on the grounds that such sources should be 

treated for public participation purposes as major sources for 

which such notice is required. See 40 CFR 51.166(q)(2)(iii).

While NAC 445B.3457 does not provide for traditional 

newspaper notice of class II sources that constitute synthetic 

minor sources, we concluded that the deficiency in Nevada’s 

public notice requirements with respect to synthetic minor 

sources was not significant due to the limited potential number 

of synthetic minor sources that might not be subject to 

traditional (newspaper) notice under the State's NSR rules. 

Nonetheless, we recommended that the SEC amend the public notice 

regulations to ensure that the general public is notified of new 

synthetic minor sources by traditional (newspaper) means, at a 

minimum, or, preferably, in combination with electronic means.

Ninth, we concluded that the deficiencies in the 

affirmative defense provision in NAC 445B.326 (“Operating 

permits: Assertion of emergency as affirmative defense to action 

for noncompliance”) were moot for the purposes of this 

rulemaking because NDEP did not include NAC 445B.326 in the 

revise sets of NSR rules submitted to EPA for action as a SIP 

revision.

Lastly, we concluded that the amendments to NAC 445B.308 

("Prerequisites and conditions for issuance of certain operating 
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permits; compliance with applicable state implementation plan") 

adequately addressed the deficiencies by appropriately limiting 

the Director's discretion to approve any permit for any source 

where the degree of emission limitation required is affected by 

that amount of the stack height as exceeds good engineering 

practice stack height or any other dispersion technique.

In conclusion, based on our point-by-point evaluation of 

the previous deficiencies in the previously-submitted NSR rules, 

we found that Nevada had adequately addressed all of the 

previously-identified deficiencies by submittal of appropriately 

amended rules and supporting documentation. Please see our June 

28, 2012 proposed rule at pages 38560 to 38563 for additional 

discussion of our evaluation and conclusions concerning the 

resolution of the previously-identified deficiencies in the NSR 

rules.

C. New Deficiencies

While we believed that Nevada had adequately addressed the 

previously-identified deficiencies in the NSR rules, we found in 

our June 28, 2012 proposed rule that the State’s NSR rules fail 

to address certain new requirements that were not in effect in 

2008 when EPA last took action on them.

Under 40 CFR 51.160, in connection with NSR, each SIP must 

set forth legally enforceable procedures that enable the State 
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19

or local agency to determine whether the construction or 

modification of a facility, building, structure or installation 

or combination of these will result in, among other impacts, 

interference with attainment or maintenance of a national 

standard in the state in which the proposed source (or 

modification) is located or in a neighboring State. In our June 

28, 2012 proposed rule, we concluded that the NSR rules did not 

meet the requirements of 40 CFR 51.160 with respect to the PM2.5

NAAQS and the lead (Pb) NAAQS.

With respect to PM2.5, we recognized that NDEP had submitted 

"infrastructure" SIPs5 to address the PM2.5 NAAQS and that, in 

those SIPs, NDEP indicated that NSR requirements for the PM2.5

NAAQS were to be met by evaluating new and modified sources for 

compliance with the PM10 standard. At the time these

infrastructure SIPs were submitted, EPA's policy allowed States 

to permit new or modified PM2.5 sources using the PM10 NSR program 

requirements as a surrogate for PM2.5.

We also recognized that we did not take timely action on 

the PM2.5 "infrastructure" SIP submittals, and, as a result of 

the passage of time, the "surrogate" policy has lapsed (since 

 5

 "Infrastructure" SIPs refer to SIPs submitted in response to EPA's 

promulgation of a new or revised NAAQS and include provisions necessary to 

comply with the SIP content requirements set forth in CAA section 110(a)(2), 

other than those arising from designation of any area within a state as 

"nonattainment" for the new or amended NAAQS.
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May 16, 2011). As a result, States must now evaluate PM2.5

emissions from new or modified sources directly to determine 

whether such sources would violate the 24-hour (35 μg/m3) or 

annual (15 μg/m3) PM2.5 standards. See 40 CFR 51.166(a)(6)(i) and 

73 FR 28321, at 28344; (May 16, 2008). The submitted NSR rules 

evaluated herein do not yet address PM2.5, and given the now 

current requirements for PM2.5 and the lapse of the surrogate 

policy, we concluded in our proposed rule that we cannot now 

fully approve the submitted NSR rules. 

With respect to lead (Pb), we recognized that NDEP 

submitted an infrastructure SIP on October 12, 2011 to address 

the 2008 Pb NAAQS and that we have not yet taken action on it. 

Furthermore, we recognize that, at the time NDEP submitted the 

Pb "infrastructure" SIP, the deadline for States to submit the 

necessary NSR-related changes to address the 2008 Pb NAAQS had 

not yet passed. Now, however, with the passage of time, the 

deadline for such NSR-related changes has passed, and we must 

evaluate the submitted NSR requirements against the now-current 

NSR requirements. Thus, similar to the approach we are taking 

for PM2.5, we find that the submitted NSR rules do not address 

the new rolling 3-month average Pb NAAQS (0.15 μg/m3

) and thus we 

concluded that we cannot now fully approve the submitted NSR 

rules. See 73 FR 66964, 67034–67041; (November 12, 2008). 
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Lastly, we concluded in our proposed rule that the State 

Environmental Commission must revise the NSR rules to ensure 

protection of the PM2.5 and Pb NAAQS in the issuance of permits 

for new or modified sources or EPA must promulgate a FIP within 

two years of final action.

For more information about our evaluation concerning the 

new deficiencies, please see the June 28, 2012 proposed rule at 

pages 38563-38564.

II. Public Comment on Proposed Action

EPA’s proposed action provided a 30-day public comment 

period. During this period, we received one comment letter, a 

letter from the Nevada Division of Environmental Protection 

(NDEP), dated July 27, 2012. In the July 27, 2012 letter, NDEP 

expresses general support for EPA's limited approval of the 

updated NSR rules noting that it results in a significant update 

of the permitting provisions in Nevada applicable SIP. EPA 

appreciates NDEP's significant efforts to fully address the 

deficiencies EPA identified in the previous submittals.

III. Final Action

No comments were submitted that change our assessment of 

the rules as described in our proposed action. Therefore, 

pursuant to sections 110(k) and 301(a) of the Clean Air Act, and 

for the reasons provided above and in our proposed rule, EPA is 
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22

finalizing a limited approval and limited disapproval of 

revisions to the Nevada SIP that govern applications for, and 

issuance of, permits for stationary sources under the 

jurisdiction of the Nevada Division of Environmental Protection, 

excluding review and permitting of major sources and major 

modifications under parts C and D of title I of the Clean Air 

Act. Specifically, EPA is finalizing limited approval and 

limited disapproval of the new or amended sections of the Nevada 

Administrative Code (and one section of the Nevada Revised 

Statutes) listed in table 1 above as a revision to the Nevada 

SIP.

EPA is taking this action because, although we find that 

the new or amended rules meet most of the applicable 

requirements for such NSR programs and that the SIP revisions 

improve the existing SIP, we have also found certain 

deficiencies that prevent full approval. Namely, the submitted 

NSR rules do not address the new or revised national ambient air 

quality standards for PM2.5 and lead (Pb) and must be revised 

accordingly.

The intended effect of this limited approval and limited 

disapproval action is to update the applicable state 

implementation plan with current State rules with respect to 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

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permitting,6 and to set the stage for remedying deficiencies in 

the permitting rules with respect to new or revised national 

ambient air quality standards for PM2.5 and Pb. This limited 

disapproval action does not trigger mandatory sanctions under 

section 179 of the Clean Air Act because sanctions apply to 

nonattainment areas and no areas within the State of Nevada have 

been designated as nonattainment for the national PM2.5 or Pb 

standards. However, this limited disapproval action does trigger 

an obligation on EPA to promulgate a Federal Implementation Plan 

unless the State of Nevada corrects the deficiencies, and EPA 

approves the related plan revisions within two years of this

final action. 

IV. Statutory and Executive Order Reviews

A. Executive Order 12988, Regulatory Planning and Review

The Office of Management and Budget (OMB) has exempted this 

regulatory action from Executive Order 128665, entitled 

“Regulatory Planning and Review.”

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. Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Reduction Act

 6

 Final approval of the rules (and statutory provision) in table 1 supersedes

the rules listed in table 2, above, in the existing Nevada SIP. 
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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.

This rule will not have a significant impact on a 

substantial number of small entities because SIP approvals or 

disapprovals under section 110 of the Clean Air Act do not 

create any new requirements but simply approve or disapprove 

requirements that the State is already imposing. Therefore, 

because this limited approval/limited disapproval action does 

not create any new requirements, I certify that this action will 

not have a significant economic impact on a substantial number 

of small entities. Moreover, due to the nature of the FederalState relationship under the Clean Air Act, preparation of 

flexibility analysis would constitute Federal inquiry into the 

economic reasonableness of State action. The Clean Air Act 

forbids EPA to base its actions concerning SIPs on such grounds. 

Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 

U.S.C. 7410(a)(2).

D. Unfunded Mandates Reform Act
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have taken steps to ensure the accuracy of this version, but it is not the official version.

25

Under section 202 of the Unfunded Mandates Reform Act of 

1995 (“Unfunded Mandates Act”), signed into law on March 22, 

1995, EPA must prepare a budgetary impact statement to accompany 

any proposed or final rule that includes a Federal mandate that 

may result in estimated costs to State, local, or tribal 

governments in the aggregate; or to the private sector, of $100 

million or more. Under section 205, EPA must select the most 

cost-effective and least burdensome alternative that achieves 

the objectives of the rule and is consistent with statutory 

requirements. Section 203 requires EPA to establish a plan for 

informing and advising any small governments that may be 

significantly or uniquely impacted by the rule.

EPA has determined that this limited approval/limited 

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 Federal action takes a limited 

approval/limited disapproval action on 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
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have taken steps to ensure the accuracy of this version, but it is not the official version.

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Federalism (64 FR 43255, August 10, 1999) revokes and 

replaces Executive Orders 12612 (Federalism) and 12875 

(Enhancing the Intergovernmental Partnership). Executive Order 

13132 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.” Under Executive Order 13132, EPA may not 

issue a regulation that has federalism implications, that 

imposes substantial direct compliance costs, and that is not 

required by statute, unless the Federal government provides the 

funds necessary to pay the direct compliance costs incurred by 

State and local governments, or EPA consults with State and 

local officials early in the process of developing the proposed 

regulation. EPA also may not issue a regulation that has 

federalism implications and that preempts State law unless the 

Agency consults with State and local officials early in the 

process of developing the proposed regulation.
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This rule will not have substantial direct effects on the 

States, on the relationship between the national government and 

the States, or on the distribution of power and responsibilities 

among the various levels of government, as specified in 

Executive Order 13132, because it merely takes a limited 

approval/limited disapproval action on State rules implementing 

a Federal standard, and does not alter the relationship or the 

distribution of power and responsibilities established in the 

Clean Air Act. Thus, the requirements of section 6 of the 

Executive Order do not apply to this rule.

F. Executive Order 13175, Coordination with Indian Tribal 

Governments

Executive Order 13175, entitled “Consultation and 

Coordination with Indian Tribal Governments” (65 FR 67249, 

November 9, 2000), requires EPA to develop an accountable 

process to ensure “meaningful and timely input by tribal 

officials in the development of regulatory policies that have 

tribal implications.” This proposed rule does not have tribal 

implications, as specified in Executive Order 13175. It will not 

have substantial direct effects on tribal governments, on the 

relationship between the Federal government and Indian tribes, 

or on the distribution of power and responsibilities between the 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

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Federal government and Indian tribes. Thus, Executive Order 

13175 does not apply to this rule.

G. Executive Order 13045, Protection of Children from 

Environmental Health Risks and Safety Risks

EPA interprets Executive Order 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 Executive Order has the potential to 

influence the regulation. This rule is not subject to Executive 

Order 13045, because it takes a limited approval/limited 

disapproval action on State rules implementing a Federal 

standard.

H. Executive Order 13211, Actions that Significantly Affect 

Energy Supply, Distribution, or Use 

This rule is not subject to Executive Order 13211, “Actions 

Concerning Regulations That Significantly Affect Energy Supply, 

Distribution, or Use” (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 of the National Technology Transfer and 

Advancement Act (NTTAA) of 1995 requires Federal agencies to 

evaluate existing technical standards when developing a new 

regulation. To comply with NTTAA, EPA must consider and use 
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“voluntary consensus standards” (VCS) if available and 

applicable when developing programs and policies unless doing so 

would be inconsistent with applicable law or otherwise 

impractical.

EPA believes that VCS are inapplicable to this action.

Today’s action does not require the public to perform activities 

conducive to the use of VCS.

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. In reviewing SIP 

submissions, EPA's role is to approve or disapprove state 

choices, based on the criteria of the Clean Air Act. 
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Accordingly, this action merely takes a limited approval/limited 

disapproval action on certain State requirements for inclusion 

into the SIP under section 110 of the Clean Air Act and will not 

in-and-of itself create any new requirements. Accordingly, it 

does not provide EPA with the discretionary authority to 

address, as appropriate, disproportionate human health or 

environmental effects, using practicable and legally permissible 

methods, under Executive Order 12898.

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).

L. Petitions for Judicial Review
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Under section 307(b)(1) of the Clean Air Act, petitions for 

judicial review of this action must be filed in the United 

States Court of Appeals for the appropriate circuit by [Insert 

date 60 days from date of publication of this document in the 

Federal Register]. Filing a petition for reconsideration by the 

Administrator of this final rule does not affect the finality of 

this rule for the purposes of judicial review nor does it extend 

the time within which a petition for judicial review may be 

filed, and shall not postpone the effectiveness of such rule or 

action. This action may not be challenged later in proceedings 

to enforce its requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control,

Incorporation by reference, Intergovernmental relations, Lead, 

Particulate matter, Reporting and recordkeeping requirements, 

Sulfur oxides. 

________________ ______________________

Dated: Jared Blumenfeld

Regional Administrator,

Region IX.