Jared Blumenfeld, the Regional Administrator in Region 9, signed the following NPRM on 

July 13, 2012 and EPA is submitting it for publication in the Federal Register (FR). 

While we have taken steps to ensure the accuracy of this version of the rule, it is 

not the official version of the rule for purposes of public comment. Please refer to 

the official version in a forthcoming FR publication, which will appear on the GPO’s 

FDsys website (http://fdsys.gpo.gov/fdsys/search/home.action) and on Regulations.gov 

(http://www.regulations.gov) in Docket No. EPA-R09-OAR-2012-0566. 

Billing Code: 6560-50-P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR part 52

[EPA-R09-OAR-2012-0566; FRL-_________]

Limited Approval and Disapproval of Air Quality Implementation 

Plans; Nevada; Clark County; Stationary Source Permits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing a limited approval and limited 

disapproval of revisions to the Clark County portion of the 

applicable state implementation plan (SIP) for the State of 

Nevada. The submitted revisions include new and amended rules 

governing the issuance of permits for stationary sources, 

including review and permitting of major sources and major 

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

Act (CAA). The intended effect of this proposed limited approval 

and limited disapproval action is to update the applicable SIP 

with current Clark County permitting rules and to set the stage 

for remedying certain deficiencies in these rules. If finalized 

as proposed, this limited disapproval action would trigger an 
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This document is a prepublication version, signed by Jared Blumenfeld, the Regional 

Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

obligation on EPA to promulgate a Federal Implementation Plan 

unless Nevada submits and we approve SIP revisions that correct

the deficiencies within two years of the final action, and for

certain deficiencies the limited disapproval would also trigger 

sanctions under section 179 of the CAA unless Nevada submits and 

we approve SIP revisions that correct the deficiencies within 18 

months of final action.

DATES: Written comments must be received on or before [Insert 

date 30 days after publication in the Federal Register]. 

ADDRESSES: Submit comments, identified by Docket ID Number EPAR09-OAR-2012-0566, by one of the following methods:

1. Federal eRulemaking Portal: www.regulations.gov. Follow the 

on-line instructions.

2. E-mail: R9airpermits@epa.gov

3. Mail or deliver: Gerardo Rios (AIR-3), U.S. Environmental 

Protection Agency, Region IX, 75 Hawthorne Street, San 

Francisco, CA 94105-3901. Deliveries are only accepted 

during the Regional Office’s normal hours of operation.

Instructions: All comments will be included in the public 

docket without change and may be made available online at 

www.regulations.gov, including any personal information

provided, unless the comment includes Confidential Business 

Information (CBI) or other information whose disclosure is

restricted by statute. Information that you consider CBI or 
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This document is a prepublication version, signed by Jared Blumenfeld, the Regional 

Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

otherwise protected should be clearly identified as such and 

should not be submitted through www.regulations.gov or e-mail. 

www.regulations.gov is an anonymous access system, and EPA will 

not know your identity or contact information unless you provide 

it in the body of your comment. If you send email directly to 

EPA, your e-mail address will be automatically captured and 

included as part of the public comment. If EPA cannot read your 

comment due to technical difficulties and cannot contact you for 

clarification, EPA may not be able to consider your comment.

Docket: Generally, documents in the docket for this action 

are 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 at 

www.regulations.gov, some information may be publicly available 

only at the hard copy location (e.g., copyrighted material, 

large maps), and some may not be publicly available in 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, by phone: (415)

972-3534 or by email at yannayon.laura@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, the terms

“we,” “us,” and “our” refer to EPA.

TABLE OF CONTENTS
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This document is a prepublication version, signed by Jared Blumenfeld, the Regional 

Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

I. The State’s Submittals

A. Which rules did the State submit?

B. What are the existing Clark County rules governing 

stationary source permits in the Nevada SIP?

C. What is the purpose of this proposed rule?

II. EPA’s Evaluation

A. How is EPA evaluating the rules?

B. Do the rules meet the evaluation criteria?

1. Minor Source Permits

2. Prevention of Significant Deterioration

3. Nonattainment New Source Review

4. Section 110(l) of the Act

5. Conclusion

III. Public Comment and Proposed Action

IV. Statutory and Executive Order Reviews

I. The State’s Submittals

A. Which rules did the State submit?

On February 11, 2010, September 1, 2010, and May 22, 2012, 

the Clark County Department of Air Quality (Clark or DAQ) 

submitted new and amended regulations to EPA for approval as 

revisions to the Clark County portion of the Nevada SIP under 

the Clean Air Act (CAA or Act). Collectively, the submitted 

regulations (referred to as “Sections”) comprise DAQ’s current 
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This document is a prepublication version, signed by Jared Blumenfeld, the Regional 

Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

program for preconstruction review and permitting of new or 

modified stationary sources under DAQ jurisdiction in Clark 

County, including related definitions.1 These SIP revision 

submittals, referred to herein as the “NSR SIP submittal” or 

“submitted NSR rules,” represent a comprehensive revision to 

Clark County’s preconstruction review and permitting program and 

are intended to satisfy the requirements under both part C 

(prevention of significant deterioration) (PSD) and part D 

(nonattainment new source review) of title I of the Act as well 

as the general preconstruction review requirements for minor 

sources under section 110(a)(2)(C) of the Act. These 

preconstruction review and permitting programs are often 

collectively referred to as “New Source Review” (NSR).

It should be noted that pursuant to State law, the State of 

Nevada, not a local air district, has jurisdiction over plants 

which generate electricity by using steam produced by the 

burning of fossil fuel within the State of Nevada. The 

applicable State law, now codified in Nevada Revised Statutes 

(NRS) 445B.500, was approved by EPA in 1980 as NRS 445.546(4). 

See 45 FR 46384 (July 10, 1980) (now codified at 40 CFR 

52.1470(e)). Thus, the State, not DAQ, has jurisdiction over 

such plants that are located or that will be constructed within 

 

1 The submitted program relies upon certain definitions contained in submitted 

Section 0 as well as the definition of “ambient air quality standards” in DAQ 

Section 11, which EPA previously approved into the Nevada SIP (69 FR 54006, 

September 7, 2004) and is not included in this submittal.
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This document is a prepublication version, signed by Jared Blumenfeld, the Regional 

Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

Clark County. The submitted NSR rules therefore apply to 

stationary sources located in Clark County, except for plants

which generate electricity by using steam produced by the 

burning of fossil fuel, which are subject to the Nevada Division 

of Environmental Protection’s (NDEP) jurisdiction.

Table 1 lists the rules addressed by this proposal with the 

dates that they were adopted by DAQ and submitted to EPA by

NDEP, which is the governor’s designee for Nevada SIP 

submittals.

Table 1 – Submitted NSR Rules2

Section 

Number Section Title Adopted Submitted

0 Definitions 3/6/12 5/22/12

12.0

Applicability, General 

Requirements and Transition 

Procedures 11/3/09 2/11/10

12.1 Permit Requirements for Minor 

Sources 11/3/09 2/11/10

12.2

Permit Requirements for Major 

Sources in Attainment Areas

(Prevention of Significant 

Deterioration) 3/6/12 5/22/12

12.3 Permit Requirements for Major 

Sources in Nonattainment Areas 5/18/10 9/01/10

12.4

Authority to Construct 

Application and Permit 

Requirements For Part 70 

Sources3 5/18/10 9/01/10

 

2 DAQ also included a permitting regulation called “Section 12.11 (General 

Permits For Minor Stationary Sources)” as part of its NSR SIP Submittal but 

we are not proposing action on this regulation at this time.

3 Section 12.4 also contains requirements to address the CAA title V 

requirements for operating permit programs, but we are not evaluating the 

rule for title V purposes at this time. We will evaluate Section 12.4 for 

compliance with the requirements of title V of the Act and EPA’s implementing 
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This document is a prepublication version, signed by Jared Blumenfeld, the Regional 

Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

On August 11, 2010 and March 1, 2011, DAQ’s February 11, 

2010 and September 1, 2010 submittals were deemed by operation 

of law to meet the completeness criteria in 40 CFR part 51, 

appendix V, which must be met before formal EPA review. We find 

that DAQ’s May 22, 2012 submittal also meets the appendix V 

completeness criteria. Each of these submittals includes 

evidence of public notice and adoption of the regulation. While 

we can act only on the most recently submitted version of each 

regulation (which supersedes earlier submitted versions), we 

have reviewed materials provided with previous submittals. Our 

technical support document (TSD) provides additional background 

information on each of the submitted rules.

B. What are the existing Clark County rules governing 

stationary source permits in the Nevada SIP?

The existing SIP-approved NSR program for new or modified 

stationary sources in Clark County consists of one State 

regulation and seven Clark County regulations (“Sections”), or 

portions thereof, which EPA approved on April 14, 1981, June 18, 

1982, June 21, 1981, and September 7, 2004. See 46 FR 21758 

(April 14, 1981) (final rule approving DAQ Section 1); 47 FR 

26620 (June 21, 1982) (final rule approving revisions to DAQ 

Section 1); 47 FR 26386 (June 18, 1982) (final rule approving 

 regulations in 40 CFR part 70 following receipt of an official part 70 

program submittal from Clark County containing this rule.
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This document is a prepublication version, signed by Jared Blumenfeld, the Regional 

Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

DAQ Section 16); and 69 FR 54006 (September 7, 2004) (final rule 

approving, in whole or in part, DAQ Sections 0, 11, 12, 58, and 

59, and Nevada Administrative Code (NAC) 445B.22083).

Collectively, these regulations established the NSR requirements 

for both major and minor stationary sources under DAQ 

jurisdiction in Clark County, including requirements for the 

generation and use of emission reduction credits in 

nonattainment areas.

Consistent with Clark’s stated intent to have the submitted 

NSR rules replace the existing SIP NSR program in its entirety,

EPA’s approval of the regulations identified above in table 1 

would have the effect of entirely superseding, or rescinding our 

prior approval of, all but two of the rules in the current SIPapproved program. Table 2 lists the existing rules in the Nevada 

SIP governing NSR for stationary sources under DAQ jurisdiction. 

All of these rules except for Section 11 and NAC section

445B.22083 would be replaced in, or otherwise deleted from, the 

SIP by the submitted set of rules listed in table 1 if EPA were 

to take final action as proposed herein. Section 11 is a rule 

that defines DAQ’s “ambient air quality standards.” NAC 

445B.22083 is a regulation adopted by the Nevada State 

Environmental Commission (SEC) that prohibits the construction 

of new power plants or major modifications to existing power 

plants under State jurisdiction within specified areas 
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This document is a prepublication version, signed by Jared Blumenfeld, the Regional 

Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

designated nonattainment for certain NAAQS within Clark County.4

Our proposed action would have no effect on Section 11 or NAC 

445B.22083, both of which remain part of the applicable Nevada 

SIP.

Table 2 — Existing SIP Rules Governing NSR for Stationary 

Sources Under DAQ Jurisdiction

Section 

Number Section Title

Fed. Reg. 

Citation and 

EPA Approval 

Date

0 Definitions 69 FR 54006, 

9/7/04

1 Definitions (33 terms retained 

in SIP in 69 FR 54006, 9/7/04)

46 FR 21758,

4/14/81 and

47 FR 26620,

6/21/82

11 Ambient Air Quality Standards 69 FR 54006, 

9/7/04

12 Preconstruction Review For New 

Or Modified Stationary Sources

69 FR 54006, 

9/7/04

16 Operating Permits 47 FR 26386, 

6/18/82

58 Emission Reduction Credits 69 FR 54006, 

9/7/04

59 Emission Offsets 69 FR 54006, 

9/7/04

NAC 

445B.22083

Construction, major modification

or relocation of plants to 

generate electricity using steam 

produced by burning of fossil 

fuels.

69 FR 54006, 

9/7/04

C. What is the purpose of this proposed rule?

 

4 As explained further in the TSD, EPA’s approval of NAC 445B.22083 in 2004 

resolved a regulatory gap that would otherwise exist in connection with NSR 

for major stationary sources and major modification under NDEP jurisdiction 

(i.e., major new or modified plants which generate electricity by using steam 

produced by the burning of fossil fuel, see NRS 445B.500) within the 

nonattainment portions of Clark County.
10

This document is a prepublication version, signed by Jared Blumenfeld, the Regional 

Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

The purpose of this proposed rule is to present our 

evaluation under the CAA and EPA’s regulations of the new and 

amended NSR rules submitted by DAQ on February 11, 2010, 

September 1, 2010, and May 22, 2012, as identified in table 1.

We provide our reasoning in general terms below but provide more 

detailed analysis in our technical support document (TSD), which 

is available in the docket for this proposed rulemaking.

II. EPA’s Evaluation

A. How is EPA evaluating the rules?

EPA has reviewed the rules submitted by DAQ governing NSR 

for stationary sources under DAQ jurisdiction for compliance 

with the CAA’s general requirements for SIPs in CAA section 

110(a)(2), EPA’s regulations for stationary source permitting 

programs in 40 CFR part 51, sections 51.160 through 51.164, and

the CAA requirements for SIP revisions in CAA section 110(l).5 As 

described below, EPA is proposing a limited approval and limited 

disapproval of the submitted NSR rules.

B. Do the rules meet the evaluation criteria?

With respect to procedures, CAA sections 110(a) and 110(l) 

require that revisions to a SIP be adopted by the State after 

 

5 CAA section 110(l) requires SIP revisions to be subject to reasonable notice 

and public hearing prior to adoption and submittal by States to EPA and 

prohibits EPA from approving any SIP revision that would interfere with any 

applicable requirement concerning attainment and reasonable further progress, 

or any other applicable requirement of the CAA.
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This document is a prepublication version, signed by Jared Blumenfeld, the Regional 

Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

reasonable notice and public hearing. EPA has promulgated 

specific procedural requirements for SIP revisions in 40 CFR 

part 51, subpart F. These requirements include publication of 

notices, by prominent advertisement in the relevant geographic 

area, of a public hearing on the proposed revisions, a public 

comment period of at least 30 days, and an opportunity for a 

public hearing.

Based on our review of the public process documentation 

included in the February 11, 2010, September 1, 2010, and May 

22, 2012 submittals, we find that DAQ has provided sufficient 

evidence of public notice and opportunity for comment and public 

hearings prior to adoption and submittal of these rules to EPA.

With respect to substantive requirements, we have evaluated 

each “Section” of DAQ’s submitted NSR rules in accordance with 

the CAA and regulatory requirements that apply to: (1) general 

preconstruction review programs for minor sources under section 

110(a)(2)(C) of the Act, (2) PSD permit programs under part C of 

title I of the Act, and (3) Nonattainment NSR permit programs 

under part D of title I of the Act. For the most part, the 

submitted NSR rules satisfy the applicable requirements for 

these three permit programs and would strengthen the applicable 

SIP by updating the regulations and adding requirements to 

address new or revised NSR permitting requirements promulgated 

by EPA in the last several years, but the submitted NSR rules 
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This document is a prepublication version, signed by Jared Blumenfeld, the Regional 

Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

also contain specific deficiencies which prevent full approval. 

Below, we discuss generally our evaluation of DAQ’s submitted 

NSR rules and the deficiencies that are the basis for our 

proposed limited disapproval of these rules. Our TSD contains a 

more detailed evaluation and recommendations for program

improvements.

1. Minor Source Permits

Section 110(a)(2)(C) of the Act requires that each SIP 

include a program to provide for “regulation of the modification 

and construction of any stationary source within the areas 

covered by the plan as necessary to assure that national ambient 

air quality standards are achieved, including a permit program 

as required in parts C and D” of title I of the Act. Thus, in 

addition to the permit programs required in parts C and D of 

title I of the Act, which apply to new or modified “major” 

stationary sources of pollutants, each SIP must include a 

program to provide for the regulation of the construction and 

modification of any stationary source within the areas covered 

by the plan as necessary to assure that the NAAQS are achieved. 

These general pre-construction requirements are commonly 

referred to as “minor NSR” and are subject to EPA’s implementing 

regulations in 40 CFR 51.160-51.164.

Section 12.1 contains the requirements for review and 

permitting of individual minor stationary sources under DAQ 
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This document is a prepublication version, signed by Jared Blumenfeld, the Regional 

Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

jurisdiction in Clark County, and Section 12.4 contains the 

requirements for review and permitting of modifications at major 

stationary sources that are not “major modifications” and 

therefore not subject to PSD or Nonattainment NSR. These 

regulations satisfy most of the statutory and regulatory

requirements for minor NSR programs, but Section 12.1 also 

contains several deficiencies that form the basis for our 

proposed limited disapproval, as discussed below.

First, one of the key control requirements in Section 12.1 

appears to depend upon a definition of “ambient air quality 

standards” that is not consistent with the NAAQS. Specifically, 

subsection 12.1.4.1(c) requires that each minor source permit 

issued by Clark include emission limitations that ensure that 

“[t]he ambient air quality standards will be attained or 

maintained” (12.1.4.1(c)) and appears to depend upon DAQ’s 

definition of “ambient air quality standards” in Section 11, 

which does not include the 2006 24-hour PM2.5 NAAQS of 35 ug/m3

or the 2008 Lead (Pb) NAAQS of 15 ug/m3 (rolling 3-month 

average). See 40 CFR 50.13 and 50.16. EPA approved Section 11 

into the Clark County portion of the Nevada SIP on September 7, 

2004 (69 FR 54006), and at the time this definition was 

consistent with the Federal NAAQS, but given EPA’s promulgation 

of revised NAAQS for PM2.5 and Lead (Pb) in 2006 and 2008, 

respectively, Section 11 is no longer consistent with the NAAQS. 
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This document is a prepublication version, signed by Jared Blumenfeld, the Regional 

Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

As such, with respect to the 2006 24-hour PM2.5 NAAQS and the 2008 

Lead NAAQS, Section 12.1 does not provide a means for 

determining whether the construction or modification of a 

stationary source will result in a violation of applicable 

portions of the control strategy or interference with attainment 

or maintenance of the NAAQS, as required by 40 CFR 51.160.

Second, subsection 12.1.3.6(a)(5) provides that an 

applicant may identify specific portions of a permit that it 

wants to be Federally enforceable. This is not consistent with 

CAA requirements, as all conditions of a permit issued pursuant 

to a SIP-approved permit program are Federally enforceable. See

CAA 113, 304; see also 40 CFR 52.23. As a general matter, we 

note that any statement contained in a permit application 

regarding Federal enforceability has no effect on EPA’s or 

citizens’ enforcement authorities under sections 113 and 304 of 

the Act.

Third, neither Section 12.1 nor Section 12.4 contain a 

provision addressing, for minor stationary sources, the 

requirement in 40 CFR 51.160(d) to “provide that approval of any 

construction or modification must not affect the responsibility 

on the owner or operator to comply with applicable portions of 

the control strategy.”

Fourth, Section 12.1 provides (in subsection 12.1.2(a)) an 

exemption from permitting requirements for “[c]onstruction and 
15

This document is a prepublication version, signed by Jared Blumenfeld, the Regional 

Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

operation of any emission units or performance of any of the 

activities listed in” a separate rule called Section 12.5, which 

addresses the operating permit requirements of title V of the 

CAA. Because Section 12.5 is neither approved into the SIP nor 

included in the NSR SIP submittal, we cannot conclude that this 

exemption is appropriate for minor NSR purposes.

Fifth, the applicability provisions in Section 12.1 (in 

particular the definition of “minor source” in subsection 

12.1.1(c)) are deficient as they do not address sources of PM2.5

or PM2.5 precursor emissions. Pursuant to CAA section 

110(a)(2)(C), States were required to amend their minor source 

programs to include direct PM2.5 emissions and precursor 

emissions in the same manner as included for purposes of PM2.5

major NSR. See 73 FR 28321, 28344 (May 16, 2008). In the absence 

of applicability provisions that appropriately capture minor 

sources of PM2.5 or their precursors, Section 12.1 does not 

provide for protection of the PM2.5 NAAQS in the issuance of 

permits for new or modified minor sources as required by 40 CFR 

51.160-51.164.

Finally, Section 12.1 does not contain any provisions 

designed to ensure that the air quality impacts of stationary 

sources are not underestimated due to stack heights that exceed 

good engineering practice or air dispersion modeling techniques 
16

This document is a prepublication version, signed by Jared Blumenfeld, the Regional 

Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

that do not satisfy the criteria in 40 CFR 51.118(b), as 

required by 40 CFR 51.164. 

Compared to the existing SIP minor NSR program in Section 

12 (as adopted October 7, 2003), however, submitted Section 12.1 

and Section 12.4 represent an overall strengthening of DAQ’s

minor NSR program. For example, the new rules establish more 

detailed monitoring, recordkeeping, and reporting requirements, 

more specific criteria for permit applications and conditions

for permit issuance, and well-defined criteria for the 

determination of emission limits and standards that represent 

“reasonably available control technology,” which we expect will 

allow for more effective implementation and enforcement of the 

requirements applicable to minor stationary sources in Clark 

County. See, e.g., Section 12.1, subsections 12.1.4.1. and 

12.1.5.1, compared with SIP Section 12 (as adopted October 7, 

2003), subsections 12.1.1. and 12.8.2. 

2. Prevention of Significant Deterioration

Part C of title I of the Act contains the provisions for 

the prevention of significant deterioration (PSD) of air quality 

in areas designated “attainment” or “unclassifiable” for the 

NAAQS, including preconstruction permit requirements for new 

major sources or major modifications proposing to construct in 

such areas. EPA’s regulations for PSD permit programs are found 

in 40 CFR 51.166 and 40 CFR 52.21. Clark County is currently 
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This document is a prepublication version, signed by Jared Blumenfeld, the Regional 

Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

designated as “attainment” or “unclassifiable/attainment” for 

all NAAQS pollutants, except for the PM10 standard in Las Vegas 

Valley (hydrographic area #212) and for the 1997 8-hour ozone 

standard in Las Vegas Valley and additional portions of the 

county. See 40 CFR 81.329.

Section 12.2 and Section 12.4 contain the requirements for 

review and permitting of PSD sources under DAQ jurisdiction in 

Clark County. These regulations satisfy most of the statutory 

and regulatory requirements for PSD permit programs, but Section

12.2 also contains several deficiencies that form the basis for 

our proposed limited disapproval, as discussed below.

First, the definition of “allowable emissions” in 

subsection 12.2.2(b) provides for calculation of emissions rates

based on “practically enforceable” permit limits, in lieu of 

federally enforceable limits, but it does not provide criteria 

by which a limit will be judged to be “practically enforceable”

by DAQ. This definition also allows for permit conditions with 

“future compliance dates” to be used to determine allowable 

emissions, which is not consistent with EPA’s definition of the 

term in 40 CFR 51.166(b)(16).

Second, the definition of “baseline actual emissions” (BAE)

in subsection 12.2.2(c), paragraph (1)(B)(i), includes a 

requirement to adjust the BAE downward to “exclude any emissions 

that would have exceeded an emission limitation with which the 
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This document is a prepublication version, signed by Jared Blumenfeld, the Regional 

Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

major stationary source must comply as of the particular date, 

had such major stationary source been required to comply with 

such limitations during the consecutive 24-month period” 

(emphasis added). EPA’s definition of BAE in 40 CFR 

51.166(b)(47)(ii)(c) includes a similar provision but requires a 

downward adjustment in BAE “to exclude any emissions that would 

have exceeded an emission limitation with which the major 

stationary source must currently comply. . . .” The reference in 

subsection 12.2.2(c) to an emission limitation that applied “as 

of the particular date” instead of an emission limitation with 

which the source must “currently comply” is problematic, as it 

is not clear which “particular date” the definition refers to.

Third, the definition of “net emissions increase” (NEI) in 

subsection 12.2.2(ii) contains several provisions in

subparagraph (1)(C) for calculating “actual emissions after the 

contemporaneous project” which are not consistent with EPA’s 

definition of NEI in 40 CFR 51.166(b)(3). EPA’s definition of 

NEI allows for consideration of those emission increases and 

decreases that are “contemporaneous” with the project under 

review but does not call for any assessment of actual emissions 

after a contemporaneous project. 40 CFR 51.166(b)(3). 

Additionally, subparagraph (1)(C)(ii) allows for the calculation 

of NEI to be based on “projected actual emissions” in certain 
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Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

cases, which is not allowed under EPA’s definition of NEI in 40 

CFR 51.166(b)(3).

Fourth, the definition of “major modification” in 

subsection 12.2.2(dd) is not consistent with EPA’s current 

approach to the treatment of fugitive emissions in applicability 

determinations for major modifications. Specifically, subsection 

12.2.2(dd) requires, in subparagraph (4), that fugitive 

emissions be excluded from the determination of whether a 

particular physical or operational change is a major 

modification “unless the major stationary source is a 

categorical stationary source or belongs to any other stationary 

source category which, as of August 7, 1980, is being regulated 

under Section 111 or 112 of the Act.” Although this language is 

consistent with the text of 40 CFR 51.166(b)(2)(v) as of July 1, 

2010, EPA has administratively stayed this paragraph

indefinitely, effective March 30, 2011. See 76 FR 17548 (final 

rule effectuating and extending stay of the final rule entitled 

"Prevention of Significant Deterioration (PSD) and Nonattainment 

New Source Review (NSR): Reconsideration of Inclusion of 

Fugitive Emissions" (“Fugitive Emissions Rule”) published 

December 19, 2008). The effect of this administrative stay was 

to revert the treatment of fugitive emissions in applicability 

determinations to the approach that applied prior to the 

Fugitive Emissions Rule, thus requiring that fugitive emissions 
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Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

be included in “major modification” applicability determinations 

for all source categories. 76 FR at 17550, 17551.

Fifth, the definition of “regulated NSR pollutant” in 

subsection 12.2.2(pp) does not satisfy current requirements 

regarding identification of precursors and treatment of

“condensable particular matter” in PSD applicability 

determinations. EPA’s definition of “regulated NSR pollutant” in 

40 CFR 51.166(b)(49)(i) requires identification of specific 

precursors for ozone and PM2.5 purposes. Additionally, EPA’s 

definition of “regulated NSR pollutant” in 40 CFR 51.166(b)(49)

includes a paragraph (vi) stating that on or after January 1, 

2011, “gaseous emissions from a source or activity which 

condense to form particulate matter at ambient temperatures” 

(i.e., condensable particular matter) must be accounted for in 

applicability determinations and in establishing emissions 

limitations for particulate matter (PM), PM2.5 and PM10 in PSD 

permits. See 73 FR 28321 (May 16, 2008) (final rule to implement 

NSR and PSD requirements for PM2.5).

Sixth, one provision governing “Plantwide Applicability 

Limits” (PALs) in subsection 12.2.19 is not entirely consistent 

with EPA’s requirement regarding the timeframe for adjustment of 

a PAL to address compliance dates that occur during the PAL 

effective period. Specifically, where the compliance date for a 

State or Federal requirement that applies to the PAL source 
21

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Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

occurs during the PAL effective period, subsection 12.2.9 allows 

for a PAL to be adjusted “at the time the affected Part 70 

Operating Permit is renewed,” rather than “at the time of PAL 

permit renewal or title V permit renewal, whichever occurs 

first,” as required by 40 CFR 51.166(w)(10)(v) (emphases added).

This is a deficiency because, although Part 70 permits are

renewed more frequently than PAL permits, at any given time it 

is possible that the expiration date for a PAL permit will occur 

before the expiration date for a Part 70 permit. 

Finally, neither Section 12.2 nor Section 12.4 contains a 

provision addressing, for new or modified major stationary 

sources, the requirement in 40 CFR 51.160(d) to “provide that 

approval of any construction or modification must not affect the 

responsibility on the owner or operator to comply with 

applicable portions of the control strategy.”

Compared to the existing SIP PSD program in Section 12 (as 

adopted October 7, 2003), however, submitted Section 12.2 and 

Section 12.4 represent an overall strengthening of DAQ’s PSD 

program, in large part because Section 12.2 includes updated PSD 

provisions to regulate new or modified major stationary sources 

of greenhouse gases (GHGs) and PM2.5, both of which are 

unregulated under the existing SIP PSD program. Section 12.2 

also satisfies the requirements of EPA’s 2002 regulations to 
22

This document is a prepublication version, signed by Jared Blumenfeld, the Regional 

Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

revise the NSR programs (67 FR 80186, December 31, 2002) (“NSR 

Reform” rules), with limited exceptions.

3. Nonattainment New Source Review

Part D of title I of the Act contains the general 

requirements for areas designated “nonattainment” for the NAAQS, 

including preconstruction permit requirements for new major 

sources or major modifications proposing to construct in such

nonattainment areas, commonly referred to as “Nonattainment New 

Source Review” or “NSR.” EPA’s regulations for NSR permit 

programs are found in 40 CFR 51.165. Clark County is currently 

designated as “attainment” or “unclassifiable/attainment” for 

all NAAQS pollutants, with two exceptions: certain portions of 

Clark County are designated and classified as “marginal” 

nonattainment for the 1997 8-hour ozone NAAQS, and the Las Vegas 

planning area within Clark County is designated and classified 

as “serious” nonattainment for the PM10 NAAQS. 40 CFR 81.329.

Section 12.3 and Section 12.4 contain the NSR requirements 

for review and permitting of major sources and major 

modifications under DAQ jurisdiction in Clark County. These 

regulations satisfy most of the statutory and regulatory 

requirements for NSR permit programs, but Section 12.3 also 

contains several deficiencies that form the basis for our 

proposed limited disapproval, as discussed below.
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This document is a prepublication version, signed by Jared Blumenfeld, the Regional 

Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

First, the requirements for offsets in Section 12.3, 

subsection 12.3.6 do not contain adequate provisions to assure 

that emission offset calculations are based on the same 

emissions baseline used in the demonstration of reasonable 

further progress for the relevant NAAQS pollutant (where 

applicable) and to satisfy EPA’s NSR criteria for offset 

calculations, as required by CAA section 173(a)(1)(A) and 40 CFR 

51.165(a)(3).

Second, Section 12.3 does not contain provisions to assure 

that emissions increases from new or modified major stationary 

sources are offset by real reductions in “actual emissions” as 

required by CAA 173(c)(1) because it does not contain adequate 

criteria for determining whether certain emission reductions may 

qualify for use as offsets. Subsection 12.3.6 references a 

separate rule (Section 12.7) for important criteria related to 

this determination, but Section 12.7 is neither approved into 

the SIP nor included in the NSR SIP submittal and therefore

cannot provide an appropriate basis for evaluating emission 

reductions for purposes of satisfying the requirements in CAA 

section 173(c)(1).

Third, Section 12.3 does not adequately address the 

requirement in CAA section 173(c)(2) to prevent emissions 

reductions “otherwise required by [the Act]” from being credited 

for purposes of satisfying the part D offset requirements. 
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Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

Specifically, although subsection 12.3.6.6(a) states that 

“[e]mission reductions used to satisfy offset requirements must 

be real, surplus, permanent, quantifiable, and federally 

enforceable” (emphasis added), the definition of the term 

“surplus” in subsection 12.3.2 is not adequate to ensure that 

emission reductions required by standards promulgated under CAA 

section 111 (New Source Performance Standards) or under CAA 

section 112 (National Emission Standards for Hazardous Air 

Pollutants) are not credited for purposes of satisfying part D 

offset requirements.

Fourth, the definition of “baseline actual emissions” (BAE) 

in subsection 12.3.2(c), paragraph (1)(C), includes a 

requirement to adjust the BAE downward to “exclude any emissions 

that would have exceeded an emission limitation with which the 

major stationary source must comply as of the particular date, 

had such major stationary source been required to comply with 

such limitations during the consecutive 24-month period” 

(emphasis added). EPA’s definition of BAE in 40 CFR 

51.165(a)(1)(xxxv)(B)(3) includes a similar provision but 

requires a downward adjustment in BAE “to exclude any emissions 

that would have exceeded an emission limitation with which the 

major stationary source must currently comply. . . .” The 

reference in subsection 12.3.2(c) to an emission limitation that 

applied “as of the particular date” instead of an emission 
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Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

limitation with which the source must “currently comply” is 

problematic, as it is not clear which “particular date” the 

definition refers to.

Fifth, the definition of “major modification” in subsection 

12.3.2(x) requires exclusion of two specific types of physical 

or operational changes that EPA’s definition of “major 

modification” in 40 CFR 51.165(a)(1)(v) does not exclude: (1) 

the installation or operation of a permanent Clean Coal 

Technology Demonstration Project that constitutes repowering; 

and (2) the reactivation of a very clean coal-fired electric 

utility steam generating unit. Although such exemptions are 

acceptable for purposes of PSD review (see 40 CFR 

51.166(b)(2)(iii) and (b)(36)), such exemptions are not 

permissible for Nonattainment NSR purposes. See CAA 415. 

Additionally, the definition of “major modification” in 

subsection 12.3.2(x) is not consistent with EPA’s current 

approach to the treatment of fugitive emissions in applicability 

determinations for major modifications. As discussed above with 

respect to the definition of this same term in Section 12.2, EPA 

has administratively stayed 40 CFR 51.165(a)(1)(v)(G), effective 

March 30, 2011 (see 76 FR 17548), which had the effect of 

reverting the treatment of fugitive emissions in applicability 

determinations to the approach that applied prior to the 

Fugitive Emissions Rule, thus requiring that fugitive emissions 
26

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Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

be included in “major modification” applicability determinations 

for all source categories. 76 FR at 17550, 17551.

Sixth, the definition of “regulated NSR pollutant” in 

subsection 12.3.2(ii) does not satisfy current requirements 

regarding “condensable particular matter” in NSR applicability 

determinations. EPA’s definition of “regulated NSR pollutant” in 

40 CFR 51.165(a)(xxxvii) includes a paragraph stating that on or 

after January 1, 2011, “gaseous emissions from a source or 

activity which condense to form particulate matter at ambient 

temperatures” (i.e., condensable particular matter) must be 

accounted for in applicability determinations and in 

establishing emissions limitations for particulate matter (PM), 

PM2.5 and PM10 in NSR permits. See 73 FR 28321.

Seventh, Section 12.3 allows for interpollutant trades 

between VOC and NOx emission reductions for purposes of 

satisfying offset requirements for ozone, and interpollutant 

trades among PM2.5, SO2 and NOx emission reductions for purpose of 

satisfying offset requirements for PM2.5. These provisions do not 

satisfy EPA’s regulatory and policy criteria for approval of 

such interpollutant trades or interprecursor trading 

hierarchies. See 40 CFR 51.165(a)(11) and “Improving Air Quality 

with Economic Incentive Programs,” U.S. EPA Office of Air and 

Radiation, January 2001. Although Section 12.3 does not 

currently apply to PM2.5 sources because Clark County is 
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Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

designated attainment/unclassifiable for the 1997 and 2006 PM2.5

NAAQS, we propose to disapprove this provision because it is 

contrary to applicable EPA regulations and policy for both ozone 

and PM2.5 purposes.

Eighth, Section 12.3 does not contain any provisions 

designed to ensure that the air quality impacts of stationary 

sources are not underestimated due to stack heights that exceed 

good engineering practice or air dispersion modeling techniques 

that do not satisfy the criteria in 40 CFR 51.118(b), as 

required by 40 CFR 51.164.

Finally, neither Section 12.3 nor Section 12.4 contain a 

provision addressing, for new or modified major stationary 

sources, the requirement in 40 CFR 51.160(d) to “provide that 

approval of any construction or modification must not affect the 

responsibility on the owner or operator to comply with 

applicable portions of the control strategy.”

Compared to the existing SIP NSR program in Section 12 (as 

adopted October 7, 2003), however, submitted Section 12.3 and 

Section 12.4 represent an overall strengthening of DAQ’s NSR

program, in large part because Section 12.3 contains definitions

of important NSR terms, such as “potential to emit,” that are 

more consistent with EPA’s definitions in 40 CFR 51.165(a) than 

the definitions used in the SIP NSR program (see, e.g.,

definition of “total potential to emit” in SIP Section 12, 
28

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Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

subsection 12.1.6.1). Section 12.3 also satisfies the 

requirements of EPA’s 2002 NSR Reform rules, with limited 

exceptions.

4. Section 110(l) of the Act

Section 110(l) prohibits EPA from approving a revision of a 

plan if the revision would “interfere with any applicable 

requirement concerning attainment and reasonable further 

progress. . . or any other applicable requirement of [the Act].”

Our approval of the Clark County NSR SIP submittal (and 

replacement or supersession of the existing SIP NSR rules) would 

strengthen the applicable SIP in some specific respects and 

would relax the SIP in other specific respects. Taken in its 

entirety, we find that the SIP revision represents a 

strengthening of Clark County’s minor NSR, PSD, and 

Nonattainment NSR programs compared to the existing SIP programs 

that we approved in 1982 and 2004, and that our approval of the 

NSR SIP submittal would not interfere with any applicable 

requirement concerning attainment and reasonable further 

progress (RFP) or any other applicable requirement of the Act.

The most significant deficiencies that we have identified 

in the submitted NSR rules, as discussed in detail earlier in 

this TSD, are generally as follows: (1) the absence of minor NSR 

provisions that ensure protection of the 2006 PM2.5 NAAQS and 

2008 Lead (Pb) NAAQS; (2) minor NSR applicability provisions 
29

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Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

that do not cover stationary sources of PM2.5; (3) deficiencies 

in the definitions of certain terms used in PSD and 

Nonattainment NSR (NNSR) applicability determinations; (4) 

definition of “regulated NSR pollutant” that does not adequately 

address PSD and NNSR requirements for regulation of condensable 

particulate matter; (5) deficiencies in the criteria for 

assessing the quality (or “integrity”) of emission reduction 

credits used to satisfy NNSR offset requirements; and (6) the 

absence of minor NSR or NNSR provisions to ensure that the air 

quality impacts of stationary sources are not underestimated due 

to stack heights that exceed good engineering practice or 

unacceptable air dispersion modeling techniques. We identify 

these as the “most significant” deficiencies because these are 

the most likely to affect pollutant emissions within Clark 

County, compared to other deficiencies that we do not expect 

would significantly affect emissions levels (e.g., 

administrative requirements for permit issuance).

Many of these deficiencies are related to requirements that 

came into effect after we last approved Clark County’s NSR 

programs in 1982 and 2004. For example, minor NSR SIP revisions 

to implement the 2006 PM2.5 NAAQS and 2008 Lead (Pb) NAAQS were 

due in 2009 and 2011, respectively. See CAA 110(a). Similarly, 

SIP revisions to implement EPA’s PSD and NNSR requirements for 

condensable particular matter were due in 2011. See 73 FR 28321 
30

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Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

(May 16, 2008). With respect to all of these post-2005 

requirements, which the existing SIP NSR program does not 

address, we believe it is reasonable to conclude that our 

approval of the NSR SIP submittal as a revision to the Nevada 

SIP would not interfere with any applicable requirement 

concerning attainment and RFP or any other applicable 

requirement of the Act, because there is no applicable 

requirement in the existing SIP program that would be affected 

by the deficiencies in the submitted NSR rules. 

As to the remaining deficiencies, we have evaluated these 

together with the most significant differences between the two 

NSR programs (SIP-approved versus the NSR SIP submittal) to 

evaluate the overall effect that our approval of the NSR SIP 

submittal might have on the stringency of DAQ’s permit programs 

and the potential air quality impacts of these program 

revisions. First, certain PSD and NNSR definitions governing 

applicability determinations in Section 12.2 and Section 12.3 

are not as stringent as the corresponding Federal definitions in 

40 CFR 51.166 and 51.165, respectively. Second, the offset ratio 

in Section 12.3 is 1:1, compared to a more stringent ratio of 

2:1 in the existing SIP NSR program, and the criteria in Section 

12.3 for evaluating the integrity of emissions reduction credits 

used to satisfy NNSR offset requirements are not adequate to 

assure actual emission reductions. Third, the minor NSR program 
31

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Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

and NNSR program (Sections 12.1, 12.3, and 12.4 to some extent) 

both lack provisions to ensure that the air quality impacts of 

stationary sources are not underestimated due to stack heights 

that exceed good engineering practice or unacceptable air 

dispersion modeling techniques. Fourth, DAQ has established 

public notice thresholds for minor NSR (Section 12.1) that 

exclude from public review the following types of lessenvironmentally significant minor sources: (1) new minor sources 

with potential emissions of NAAQS pollutants below 50 tons per 

year (tpy) for CO; 40 tpy for VOCs, SO2, or NOx; 15 tpy for PM10; 

and 0.6 tpy for Lead (Pb) (see subsection 12.1.5.3), and (2) 

modifications at existing minor sources that result in PTE 

increases less than 40 tpy for SO2; 35 tpy for CO; 20 tpy for VOC 

or NOx; and 7.5 tpy for PM10 (see subsection 12.1.6(a)(7)).

Compare with SIP Section 12, subsection 12.1.1.1 (requiring 

preconstruction review for “any new stationary source” or 

“modification” without emissions-based applicability 

thresholds). Finally, the control standard for minor sources has 

been changed from “Best Available Control Technology” under the 

SIP minor NSR program to “Reasonably Available Control 

Technology” under submitted Section 12.1 (see subsection 

12.1.3.6(b), (c)).

With respect to the scope of the NSR program, the 

deficiencies in the applicability-related definitions in 
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Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

Sections 12.2 and 12.3 and the new de minimis thresholds 

established in Section 12.1 could potentially reduce the number 

of new or modified stationary sources that are subject to 

preconstruction review under these programs and thereby relax 

the NSR program for new and modified sources compared to the 

SIP-approved program. As to the minor NSR control standard, the 

NNSR offset requirements, and the absence of provisions related 

to stack heights, the submitted NSR rules may result in 

application of less-stringent control technologies on minor 

sources (from BACT to RACT), potential under estimations of the 

air quality impacts of stationary source operations and, with 

respect to ozone precursor and PM10 emissions, offset 

transactions that may not achieve adequate emission reductions.

Several significant improvements in the submitted NSR rules 

should be considered in assessing the overall impact of these 

potential program relaxations. First, the potential for reduced 

numbers of regulated sources is offset to at least some extent 

by new provisions in Section 12.1 that establish a five-year 

permit term, thereby mandating a regular review of all minor 

source permit conditions and source operations, and provisions 

providing that DAQ may re-open a minor NSR permit at any time 

for cause. See “Proposed Revision To The Clark County Part Of 

The Nevada State Implementation Plan: Minor Source New Source 

Review Program Rule Adoptions And Revisions,” January 29, 2009 
33

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Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

(hereinafter “Minor NSR SIP Submittal”), Appendix B: “Technical 

Requirements.”

Second, Section 12.1 requires that each minor NSR permit 

contain a number of important types of permit terms and 

conditions which are more specific than required under the SIP 

NSR program and that strengthen the enforceability of the 

program – for example, physical descriptions of each emission 

unit, emission limitations that ensure protection of ambient air 

quality standards, and more clearly defined monitoring, 

recordkeeping, and reporting requirements modeled on the CAA’s 

title V operating permit program. Compare Section 12.1, 

subsection 12.1.4.1 (Term and Conditions) with SIP Section 12, 

subsection 12.8.1.1 (conditions of ATC).

Third, Section 12.1 contains important new conditions for 

issuance of minor NSR permits, such as the requirement to assure 

compliance with all applicable SIP requirements. See Section 

12.1, subsection 12.1.5.1 (Action on Application) compared to 

SIP Section 12 (as adopted October 7, 2003), subsection 12.8.2 

(ATC issuance requirements). 

Fourth, both the minor source program in Section 12.1 and 

the major source programs in Sections 12.2 and 12.3 rely on 

several new or revised definitions of key terms that are more 

consistent with Federal definitions (in CAA 302 and 40 CFR part 

51, subpart I) than corresponding definitions in the SIP NSR 
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Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

program. See, e.g., definition of “potential to emit” in Section 

06 compared to definition of “total potential to emit” in SIP 

Section 12 (as adopted October 7, 2003), subsection 12.1.6.1; 

new definition of “emission limit” or “emission limitation” in 

Section 0.

Finally, with respect to the difference between BACT and 

LAER for minor stationary sources in Clark County, supporting 

information submitted by DAQ indicates that the shift away from 

the existing BACT standard in the SIP is not likely to affect 

emissions to any significant degree given the ambiguities in the 

SIP rule which undermined the practical enforceability of this 

standard, and that the RACT standard in submitted Section 12.1 

is expected to be equally effective in controlling emissions at 

minor sources, if not more so given the enhanced compliance 

provisions. See Minor NSR SIP Submittal, Chapter 3: “Technical 

Support Document for Sections 0, 12.0, 12.1, and 12.11” at 3-20 

to 3-28 and Appendix B: “Technical Requirements.” 

With respect to offset requirements, we note that the SIP 

NSR program did not require offsets for VOC or NOx because Clark 

County was not designated nonattainment for any ozone NAAQS at 

 

6 Section 12.1 establishes emission-based applicability thresholds based on a 

definition of “potential to emit” in submitted Section 0 that is generally 

equivalent to EPA’s definition of this term in 40 CFR 51.165 and 51.166. The 

SIP NSR program in Section 12 (as adopted October 7, 2003), contains 

applicability provisions based on a definition of “total potential to emit” 

that is generally more expansive but allows, on the other hand, for certain 

engines categorized as “special mobile equipment” to be inappropriately 

exempt from the calculation of PTE (see SIP Section 12, subsection 12.1.6.1).
35

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Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

the time when we approved the SIP program in 2004. See Section 

59 (Emission Offsets), as adopted October 7, 2003 at Table 

59.1.2. The NSR control (LAER) and offset requirements in 

submitted Section 12.3 therefore ensure greater reductions of 

ozone precursor emissions compared to the SIP program, which 

required neither LAER nor offsets for NOx or VOC. 

For PM10 purposes, the SIP NSR program required that major 

stationary sources (i.e., sources with PTE of 70 tpy or more) 

obtain PM10 offsets at a ratio of 2:1, whereas the submitted 

Section 12.3 requires those same sources to obtain PM10 offsets 

at a ratio of 1:1. See Section 59 (Emission Offsets) (as adopted 

October 7, 2003) at Table 59.1.2 and Section 12.3 (Permit 

Requirements for Major Sources in Nonattainment Areas) (as 

adopted May 18, 2010) at Table 12.3-1. This relaxation in the 

offset ratio for PM10 sources applies only to stationary sources 

locating within the boundaries of the PM10 nonattainment area in 

the Las Vegas planning area (hydrographic area #212), and 

appears to be counterbalanced by the overall strengthening in 

the NSR program, as discussed above with respect to both major 

and minor sources throughout Clark County.

Significantly, the submitted Section 12.2 includes new PSD 

provisions to regulate new or modified major stationary sources 

of greenhouse gases (GHGs) and PM2.5, both of which are 

unregulated under the existing SIP PSD program. In addition, 
36

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Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

both Section 12.2 and Section 12.3 satisfy the requirements of 

EPA’s 2002 NSR Reform rules, with limited exceptions.

In sum, the new and revised provisions in the submitted NSR 

rules enable DAQ to review source operations on a more regular 

basis; require DAQ to make specific determinations related to 

air quality impacts and applicable SIP requirements as part of 

permit issuance; improve the enforceability of the NSR program 

through the establishment of more detailed compliance 

requirements and improved definitions of important terms; 

establish NNSR requirements for ozone precursor emissions that 

were not required under the existing SIP program; and establish 

new PSD provisions for the regulation of GHG and PM2.5 emission 

sources. We find that, on balance, these NSR program 

improvements outweigh the potential relaxations discussed above 

compared to the existing SIP program. 

In addition, Clark County is currently designated 

attainment or unclassifiable/attainment for all but two NAAQS 

pollutants (PM10 and 1997 8-hour ozone), and with respect to 

these two remaining pollutants, EPA has determined based on 

ambient air monitoring data that the nonattainment areas within 

Clark County are attaining both of these standards. See 75 FR 

45485 (August 3, 2010) (Determination of Attainment for PM10 for 

the Las Vegas Valley Nonattainment Area) and 76 FR 17343 (March 

29, 2011) (Determination of Attainment for the Clark County 1997 
37

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Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

8-Hour Ozone Nonattainment Area). We are unaware of any reliance 

by DAQ on the continuation of any aspect of the permit-related 

rules in the Clark County portion of the Nevada SIP for the 

purpose of continued attainment or maintenance of the NAAQS.

Given all these considerations and in light of the air quality 

improvements in Clark County, we propose to conclude that our 

approval of these updated NSR regulations into the Nevada SIP 

would not interfere with any applicable requirement concerning 

attainment and RFP or any other applicable requirement of the 

Act.

5. Conclusion

For the reasons stated above and explained further in our 

TSD, we find that the submitted NSR rules satisfy most of the 

applicable CAA and regulatory requirements for minor NSR, PSD, 

and Nonattainment NSR permit programs under CAA section 

110(a)(2)(C) and parts C and D of title I of the Act but also 

contain certain deficiencies that prevent us from proposing a 

full approval of the rules. Therefore, we are proposing a 

limited approval and limited disapproval of the submitted NSR 

rules. We do so based also on our finding that, while the rules 

do not meet all of the applicable requirements, the rules would 

represent an overall strengthening of the SIP by clarifying and 

enhancing the NSR permitting requirements for major and minor 

stationary sources under DAQ jurisdiction in Clark County.
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accuracy of this version, but it is not the official version.

We note that, pursuant to EPA’s recent classification of 

the Clark County ozone nonattainment area as “marginal” 

nonattainment for the 1997 8-hour ozone standard effective June 

13, 2012 (77 FR 28424, May 14, 2012), DAQ is now obligated to 

submit NSR SIP revisions meeting the applicable requirements of 

subpart 2 of part D, title I of the Act, including an offset 

ratio of 1.1 to 1 for NOx and VOC (see CAA 182(a)(4)) no later 

than June 13, 2013. Likewise, with respect to stationary sources 

under NDEP jurisdiction (i.e., major new or modified plants 

which generate electricity by using steam produced by the 

burning of fossil fuel) within portions of Clark County that are 

designated nonattainment for the 1997 8-hour ozone standard, 

NDEP is obligated to submit, no later than June 13, 2013, NSR 

SIP revisions meeting the applicable requirements of subpart 2 

of part D, title I of the Act. Although EPA is not requiring 

NDEP to submit Nonattainment NSR rules for the Las Vegas PM10 

nonattainment area (i.e., hydrographic area 212) in light of the 

construction prohibition in NAC section 445B.220837, for the 1997 

8-hour ozone NAAQS the geographic boundaries of the 

nonattainment area within Clark County extend beyond the areas 

 

7 This rule prohibits the construction of new power plants or major 

modifications to existing power plants under State jurisdiction within the 

following areas: (a) Las Vegas Valley, Hydrographic Area 212; (b) El Dorado 

Valley, Hydrographic Area 167; (c) Ivanpah Valley, Hydrographic Areas 164 a 

and 164 b; and (d) The city limits of Boulder City. See NAC section 

445B.22083. EPA approved NAC section 445B.22083 into the Nevada SIP (69 FR 

54006, 54019 (September 7, 2004)), thereby resolving the regulatory gap that 

would otherwise currently exist in connection with NSR for PM10 sources under 

NDEP jurisdiction within the Las Vegas planning area.
39

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accuracy of this version, but it is not the official version.

subject to the construction prohibition in NAC 445B.22083. See 

40 CFR 81.329. NDEP is therefore obligated to address this 

regulatory gap in Nonattainment NSR permit requirements for new 

or modified major sources in these areas. In lieu of adopting 

and submitting a Nonattainment NSR program, NDEP may revise NAC 

section 445B.22083 to extend its construction prohibitions to 

the entire ozone nonattainment area within Clark County (as 

defined in 40 CFR 81.329) and submit this revised rule to EPA 

for approval into the SIP. These are not current program 

deficiencies but upcoming obligations on both NDEP’s and DAQ’s 

part that we encourage the State to address at its earliest 

opportunity.

III. Public Comment and Proposed Action

Pursuant to section 110(k) of the CAA and for the reasons 

provided above, EPA is proposing a limited approval and limited 

disapproval of revisions to the Clark County portion of the 

Nevada SIP that govern the issuance of permits for stationary 

sources under the jurisdiction of the Clark County Department of 

Air Quality, including review and permitting of major sources 

and major modifications under parts C and D of title I of the 

CAA. Specifically, EPA is proposing a limited approval and 

limited disapproval of the new and amended Clark County 

regulations listed in table 1, above, as a revision to the Clark 

County portion of the Nevada SIP.
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This document is a prepublication version, signed by Jared Blumenfeld, the Regional 

Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

EPA is proposing this action because, although we find that 

the new and amended rules meet most of the applicable 

requirements for such permit programs and that the SIP revisions 

improve the existing SIP, we have found certain deficiencies 

that prevent full approval, as explained further in this 

preamble and in the TSD for this rulemaking. The intended effect 

of this proposed limited approval and limited disapproval action 

is to update the applicable SIP with current Clark County 

permitting regulations8 and to set the stage for remedying 

deficiencies in these regulations. 

If finalized as proposed, this limited approval action 

would 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. Additionally, for those

deficiencies that relate to the Nonattainment NSR requirements 

under part D of title I of the Act, the offset sanction in CAA 

section 179(b)(2) would apply in the Clark County nonattainment 

areas 18 months after the effective date of a final limited 

disapproval, and the highway funding sanctions in CAA section 

179(b)(1) would apply in these areas six months after the offset 

sanction is imposed. Neither sanction will be imposed under the 

 

8 Final approval of the rules in table 1 would supersede all but two of the 

rules in the existing Nevada SIP as listed in table 2. The two SIP rules that 

will remain in the SIP and are unaffected by today’s proposed action are 

Section 11 and NAC 445B.22083.
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This document is a prepublication version, signed by Jared Blumenfeld, the Regional 

Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

CAA if Nevada submits and we approve prior to the implementation 

of the sanctions, SIP revisions that correct the deficiencies 

that we identify in our final action. 

We will accept comments from the public on this proposed 

limited approval and limited disapproval for the next 30 days.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

This proposed 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 proposed 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 proposed 

limited approval/disapproval under section 110 and subchapter I, 

part D of the Clean Air Act will not in-and-of itself create any 

new information collection burdens but simply disapproves 

certain 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 
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This document is a prepublication version, signed by Jared Blumenfeld, the Regional 

Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

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 proposed 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 proposed

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 proposed limited approval/disapproval under 

section 110 and subchapter I, part D of the Clean Air Act will 

not in-and-of itself create any new requirements but simply 

disapproves certain State requirements for inclusion into the 

SIP. Accordingly, it affords no opportunity for EPA to fashion 

for small entities less burdensome compliance or reporting 
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This document is a prepublication version, signed by Jared Blumenfeld, the Regional 

Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

requirements or timetables or exemptions from all or part of the 

rule. The fact that the Clean Air Act prescribes that various 

consequences (e.g., higher offset requirements) may or will flow 

from this proposed limited disapproval does not mean that EPA 

either can or must conduct a regulatory flexibility analysis for 

this action. Therefore, this action will not have a significant 

economic impact on a substantial number of small entities. 

We continue to be interested in the potential impacts of 

this proposed rule on small entities and welcome comments on 

issues related to such impacts.

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 

proposed 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 action proposes to 

disapprove 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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This document is a prepublication version, signed by Jared Blumenfeld, the Regional 

Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

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 proposed action does not have federalism implications.

It will not have substantial direct effects on the States, on 

the relationship between the national government and the States, 

or on the distribution of power and responsibilities among the 

various levels of government, as specified in Executive Order 

13132, because it merely disapproves certain 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 proposed action.

F. Executive Order 13175, Coordination with Indian Tribal 

Governments

This proposed action does not have tribal implications, as 

specified in Executive Order 13175 (65 FR 67249, November 9, 
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This document is a prepublication version, signed by Jared Blumenfeld, the Regional 

Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

2000), because the SIP EPA is proposing to disapprove 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 proposed 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 proposed 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 proposed limited approval and 

disapproval under section 110 and subchapter I, part D of the 

Clean Air Act will not in-and-of itself create any new 

regulations but simply disapproves certain State requirements 

for inclusion into the SIP.

H. Executive Order 13211, Actions that Significantly Affect 

Energy Supply, Distribution, or Use

This proposed 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.
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This document is a prepublication version, signed by Jared Blumenfeld, the Regional 

Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and 

Advancement Act of 1995 (“NTTAA”), Public Law No. 104-113, 12(d) 

(15 U.S.C. 272 note) directs EPA to use voluntary consensus 

standards in its regulatory activities unless to do so would be 

inconsistent with applicable law or otherwise impractical. 

Voluntary consensus standards are technical standards (e.g., 

materials specifications, test methods, sampling procedures, and 

business practices) that are developed or adopted by voluntary 

consensus standards bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations when the Agency decides not 

to use available and applicable voluntary consensus standards.

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 LowIncome 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 
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This document is a prepublication version, signed by Jared Blumenfeld, the Regional 

Administrator in Region 9 on July 13, 2012. We have taken steps to ensure the 

accuracy of this version, but it is not the official version.

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.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, 

Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting 

and recordkeeping requirements, Volatile organic compounds.

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

_July 13, 2012______ ____// signed by //____

Dated: Jared Blumenfeld,

Regional Administrator,

Region IX.