43206 Federal Register / Vol. 77, No. 142 / Tuesday, July 24, 2012 / Proposed Rules 

Instructions: Direct your comments to 

Docket ID No. EPA–R08–OAR–2012– 

0026. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

ww.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

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an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an email comment directly 

to EPA, without going through http:// 

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address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

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submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. 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. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional instructions on 

submitting comments, go to Section I. 

General Information of the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly-available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Air Program, Environmental 

Protection Agency (EPA), Region 8, 

Mailcode 8P–AR, 1595 Wynkoop, 

Denver, Colorado 80202–1129. EPA 

requests that if at all possible, you 

contact the individual listed in the FOR

FURTHER INFORMATION CONTACT section to 

view the hard copy of the docket. You 

may view the hard copy of the docket 

Monday through Friday, 8:00 a.m. to 

4:00 p.m., excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Laurel Dygowski, Air Program, U.S. 

Environmental Protection Agency, 

Region 8, Mailcode 8P–AR, 1595 

Wynkoop, Denver, Colorado 80202– 

1129, (303) 312–6144, 

dygowski.laurel@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. What should I consider as I prepare 

my comments for EPA? 

1. Submitting CBI. Do not submit CBI 

to EPA through http:// 

www.regulations.gov or email. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in a disk or CD ROM that 

you mail to EPA, mark the outside of the 

disk or CD ROM as CBI and then 

identify electronically within the disk or 

CD ROM the specific information that is 

claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. 

2. Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

a. Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

b. Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

c. Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

d. Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

e. If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

f. Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

g. Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

h. Make sure to submit your 

comments by the comment period 

deadline identified. 

II. Proposed Rulemaking 

Detailed background information 

describing the proposed rulemaking 

may be found in a previously published 

document: Approval, Disapproval and 

Promulgation of Implementation Plans; 

State of Wyoming; Regional Haze State 

Implementation Plan; Federal 

Implementation Plan for Regional Haze; 

Proposed Rule (77 FR 33022, June 4, 

2012). 

III. New Information Placed in the 

Docket 

EPA requests comment on the 

information described below that has 

been added to docket EPA–R08–OAR– 

2012–0026. 

• A July 12, 2012 letter from Micheal 

Dunn, PacifiCorp, to Carl Daly, EPA 

Region 8. The information provided in 

the letter is to support EPA’s third 

proposal in the alternative for Jim 

Bridger Unit 1 and Unit 2 as described 

in the proposed rulemaking. 

Dated: July 16, 2012. 

Judith Wong, 

Acting Regional Administrator, Region 8. 

[FR Doc. 2012–18075 Filed 7–23–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2012–0566; FRL–9703–8] 

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 obligation on 

EPA to promulgate a Federal 


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1The 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. 

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. 

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 August 23, 2012. 

ADDRESSES: Submit comments, 

identified by Docket ID Number EPA– 

R09–OAR–2012–0566, by one of the 

following methods: 

1. Federal eRulemaking Portal: 

www.regulations.gov. Follow the on-line 

instructions. 

2. Email: 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 otherwise protected 

should be clearly identified as such and 

should not be submitted through 

www.regulations.gov or email. 

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 email 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 

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 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 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 RULES 2

Section No. 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 


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3Section 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 

regulations in 40 CFR part 70 following receipt of 

an official part 70 program submittal from Clark 

County containing this rule. 4As 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. 

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

subject to reasonable notice and public hearing 

TABLE 1—SUBMITTED NSR RULES 2—Continued 

Section No. Section title Adopted Submitted 

12.4 ................... Authority to Construct Application and Permit Requirements For Part 70 Sources 3 .............. 5/18/10 9/01/10 

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 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 SIP-approved 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 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 No. 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? 

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, 


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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. 

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 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 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 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. 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 SIPapproved 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 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 


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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. 

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 

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 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 

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 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 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 


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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 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. 

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. 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 

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 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 


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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 

designated attainment/unclassifiable for 

the 1997 and 2006 p.m.2.5 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, 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 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 (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 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 less-environmentally 

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 


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6Section 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). 

applicability-related definitions in 

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 

(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 program. See, e.g., definition of 

‘‘potential to emit’’ in Section 0 6

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 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, 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 

8-Hour Ozone Nonattainment Area). We 

are unaware of any reliance by DAQ on 

the continuation of any aspect of the 


Emcdonald on DSK67QTVN1PROD with PROPOSALS
43214 Federal Register / Vol. 77, No. 142 / Tuesday, July 24, 2012 / Proposed Rules 

7This 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. 

8Final 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. 

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. 

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.22083,7 for the 1997 8-hour ozone 

NAAQS the geographic boundaries of 

the nonattainment area within Clark 

County extend beyond the areas 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. 

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 regulations 8 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 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 


Emcdonald on DSK67QTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 142 / Tuesday, July 24, 2012 / Proposed Rules 43215 

rule subject to notice and comment 

rulemaking requirements unless the 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Small entities include small businesses, 

small not-for-profit enterprises, and 

small governmental jurisdictions. For 

purposes of assessing the impacts of 

today’s 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-forprofit 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 

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 

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, 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 E.O. 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 E.O. 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. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

The EPA believes that this action is 

not subject to requirements of Section 

12(d) of NTTAA because application of 

those requirements would be 

inconsistent with the Clean Air Act. 

J. Executive Order 12898: Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Population 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA lacks the discretionary authority 

to address environmental justice in this 

rulemaking. 


Emcdonald on DSK67QTVN1PROD with PROPOSALS
43216 Federal Register / Vol. 77, No. 142 / Tuesday, July 24, 2012 / Proposed Rules 

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. 

Dated: July 13, 2012. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

[FR Doc. 2012–18077 Filed 7–23–12; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[MB Docket No. 12–177; RM–11665; DA 12– 

1008] 

Radio Broadcasting Services; 

Randsburg, CA 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: This document requests 

comments on petition for rule making 

filed by Sound Enterprises, proposing 

the substitution of Channel 275A for 

vacant Channel 271A at Randsburg, 

California. The proposed channel 

substitution at Randsburg 

accommodates Petitioner’s hybrid 

application, requesting to upgrade the 

facilities for Station KSSI(FM) from 

Channel 274A to Channel 271B1 at 

China Lake, California. See File No. 

BPH–20120314ACB. Channel 275A can 

be allotted to Randsburg consistent with 

the minimum distance separation 

requirements of the Rules with a site 

restriction 0.04 kilometers (0.03 miles) 

southeast of the community. The 

reference coordinates are 35–22–06 NL 

and 117–39–25 WL. 

DATES: Comments must be filed on or 

before August 20, 2012, and reply 

comments on or before September 4, 

2012. 

ADDRESSES: Secretary, Federal 

Communications Commission, 445 12th 

Street SW., Washington, DC 20554. In 

addition to filing comments with the 

FCC, interested parties should serve the 

petitioner as follows: Sound Enterprises, 

c/o Richard J. Hayes, Jr., Esq., Attorney 

at Law, 27 Water’s Edge Drive, 

Lincolnville, Maine 04849. 

FOR FURTHER INFORMATION CONTACT: 

Rolanda F. Smith, Media Bureau, (202) 

418–2700. 

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s Notice of 

Proposed Rule Making, MB Docket No. 

12–177, adopted June 28, 2012, and 

released June 29, 2012. The full text of 

this Commission decision is available 

for inspection and copying during 

normal business hours in the FCC’s 

Reference Information Center at Portals 

II, CY–A257, 445 12th Street SW., 

Washington, DC 20554. This document 

may also be purchased from the 

Commission’s duplicating contractors, 

Best Copy and Printing, Inc., 445 12th 

Street SW., Room CY–B402, 

Washington, DC 20554, telephone 1– 

800–378–3160 or via email 

www.BCPIWEB.com. This document 

does not contain proposed information 

collection requirements subject to the 

Paperwork Reduction Act of 1995, 

Public Law 104–13. In addition, 

therefore, it does not contain any 

proposed information collection burden 

‘‘for small business concerns with fewer 

than 25 employees,’’ pursuant to the 

Small Business Paperwork Relief Act of 

2002, Public Law 107–198, see 44 U.S.C. 

3506(c)(4). 

Provisions of the Regulatory 

Flexibility Act of l980 do not apply to 

this proceeding. 

Members of the public should note 

that from the time a Notice of Proposed 

Rule Making is issued until the matter 

is no longer subject to Commission 

consideration or court review, all ex 

parte contacts are prohibited in 

Commission proceedings, such as this 

one, which involve channel allotments. 

See 47 CFR 1.1204(b) for rules 

governing permissible ex parte contacts. 

For information regarding proper 

filing procedures for comments, see 47 

CFR 1.415 and 1.420. 

List of Subjects in 47 CFR Part 73 

Radio, Radio broadcasting. 

Federal Communications Commission. 

Nazifa Sawez, 

Assistant Chief, Audio Division, Media 

Bureau. 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission proposes to amend 47 CFR 

part 73 as follows: 

PART 73—RADIO BROADCAST 

SERVICES 

1. The authority citation for part 73 

continues to read as follows: 

Authority: 47 U.S.C. 154, 303, 334, 336 and 

339. 

§ 73.202 [Amended] 

2. Section 73.202(b), the Table of FM 

Allotments under Randsburg, California, 

is amended by removing Channel 271A 

and by adding Channel 275A at 

Randsburg. 

[FR Doc. 2012–17789 Filed 7–23–12; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

49 CFR Part 552; 557 

Denial of Motor Vehicle Defect Petition 

and Petition for a Hearing 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), DOT. 

ACTION: Denial of petition. 

SUMMARY: The Center for Auto Safety 

has petitioned NHTSA to open defect 

investigations on Model Year (MY) 

2002–2004 Ford Escape and 2001–2004 

Mazda Tribute vehicles with certain 

cruise control cables. The Center for 

Auto Safety has also petitioned for a 

hearing to address whether Ford Motor 

Company (Ford) and Mazda North 

American Operations (Mazda) met their 

obligations to notify owners and correct 

a defect in certain Ford Escape and 

Mazda Tribute vehicles. The petitions to 

open investigations are denied as moot 

and the petitions to conduct hearings 

are denied. 

FOR FURTHER INFORMATION CONTACT: 

Derek Rinehardt, National Highway 

Traffic Safety Administration, 1200 New 

Jersey Avenue SE., Washington, DC 

20590 (Telephone: 202–366–3642). 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Center for Auto Safety, in letters 

dated July 8, 2012 and July 13, 2012, 

petitioned for a Defect Order under 49 

CFR Part 552 and for a Hearing on 

Notification and Remedy of Defects 

under 49 CFR Part 577. The petitions 

relate to Ford’s recall of MY 2002–2004 

Ford Escape vehicles (Recall 04V–574) 

and Mazda’s recall of MY 2002–2004 

Mazda Tribute vehicles (Recall 04V– 

583). 

In 49 CFR Part 573 Defect and 

Information Reports (Part 573 Report) 

filed in December 2004, Ford and 

Mazda both informed NHTSA that the 

inner liner of the accelerator cable in 

certain Ford Escape and Mazda Tribute 

vehicles could migrate out of place 

during vehicle operation, and prevent 

the throttle body from returning to the 

idle position. Ford and Mazda said that 

the safety consequence of a throttle 

body not returning to the idle position 

was a progressive, and in some cases 

sudden increase in speed. Ford and 


Emcdonald on DSK67QTVN1PROD with PROPOSALS