Federal Register / Vol. 77, No. 202 / Thursday, October 18, 2012 / Rules and Regulations 64039 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address 

disproportionate human health or 

environmental effects with practical, 

appropriate, and legally permissible 

methods under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by December 17, 

2012. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this action for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements (see section 

307(b)(2)). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Volatile 

organic compounds. 

Dated: October 3, 2012. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

Part 52, Chapter I, Title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for Part 52 

continues to read as follows: 

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

Subpart F—California 

■ 2. Section 52.282 is amended by 

adding paragraph (f) to read as follows: 

§ 52.282 Control strategy and regulations: 

Ozone. 

* * * * * 

(f) Determination of attainment. EPA 

has determined that, as of November 19, 

2012, the Sacramento Metro 1-hour 

ozone nonattainment area has attained 

the 1-hour ozone standard, based upon 

complete, quality-assured and certified 

ambient air quality monitoring data for 

2007–2009. 

[FR Doc. 2012–25547 Filed 10–17–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2012–0566; FRL–9740–3] 

Limited Approval and Disapproval of 

Air Quality Implementation Plans; 

Nevada; Clark County; Stationary 

Source Permits 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is finalizing a limited 

approval and limited disapproval of 

revisions to the 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 effect of this 

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. This limited disapproval 

action triggers 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, and for certain 

deficiencies the limited disapproval also 

triggers sanctions under section 179 of 

the CAA unless the State of Nevada 

submits (on behalf of Clark County) and 

we approve SIP revisions that correct 

the deficiencies within 18 months of 

final action. 

DATES: Effective Date: This rule is 

effective on November 19, 2012. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2012–0566 for 

this action. Generally, documents in the 

docket for this action 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), and some 

may not be publicly available at either 

location (e.g., CBI). To inspect the hard 

copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Laura Yannayon, EPA Region IX, 75 

Hawthorne Street (AIR–3), San 

Francisco, CA 94105, phone number 

(415) 972–3534, fax number (415) 947– 

3579, or by email at yannayon.laura@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, the terms 

‘‘we,’’ ‘‘us,’’ and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Summary of Proposed Action 

II. Public Comment on Proposed Action 

III. Final Action 

IV. Statutory and Executive Order Reviews 

I. Summary of Proposed Action 

On July 24, 2012 (77 FR 43206), EPA 

proposed a limited approval and limited 

disapproval of revisions to the Clark 

County portion of the Nevada State 

Implementation Plan (SIP). The 

submittals included new and amended 

regulations governing the issuance of 

permits for stationary sources under the 

jurisdiction of the Clark County 

Department of Air Quality (Clark or 

DAQ), including review and permitting 

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64040 Federal Register / Vol. 77, No. 202 / Thursday, October 18, 2012 / Rules and Regulations 

1Although our proposed rule indicated that all of 

the Section 1 definitions in the SIP would be 

replaced by the NSR SIP submission (see 77 FR 

43206, 43208), EPA has found that only these six 

definitions in SIP-approved Section 1 were in fact 

part of the existing SIP rules governing NSR for 

stationary sources under DAQ jurisdiction. 

Therefore, in this final rule, we are clarifying that 

only those Section 1 definitions that pertain to NSR 

for stationary sources under DAQ jurisdiction and 

that are in fact superseded, under state law, by 

revised Clark County definitions in the submitted 

NSR rules, are being replaced in the Nevada SIP. 

of major sources and major 

modifications under parts C and D of 

title I of the CAA. 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. These SIP 

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. Specifically, EPA proposed a 

limited approval and limited 

disapproval of the new and amended 

Clark County regulations listed in 

Table 1. 

TABLE 1—SUBMITTED NSR RULES

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 

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

In our proposed rule (77 FR 43206, at 

43208), we identified the existing Clark 

County SIP rules governing NSR for 

stationary sources as listed in Table 2. 

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. 

As a result of today’s final action, all 

of these rules except for Section 11, 

NAC section 445B.22083, and portions 

of Section 1, are replaced in, or 

otherwise deleted from, the Nevada SIP 

by the submitted set of rules listed in 

Table 1. With respect to Section 1, of the 

33 terms contained in the Nevada SIP, 

the following six terms are replaced by 

revised definitions contained in the 

submitted NSR rules: (1) ‘‘Air 

contaminant’’ (subsection 1.3); (2) 

‘‘minor source’’ (subsection 1.50); (3) 

‘‘shutdown’’ (subsection 1.78); (4) 

‘‘significant’’ (unnumbered); (5) ‘‘special 

mobile equipment’’ (subsection 1.85); 

and (6) ‘‘start up’’ (subsection 1.89).1

The most significant deficiencies that 

we identified in the submitted NSR 

rules, as discussed in detail in the 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 identified 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). 

We proposed to approve SIP revisions 

that exclude certain insignificant/de 

minimis activities from minor source 

permitting requirements in the Clark 

County portion of the Nevada SIP. 

Under the Clark County rules that we 

proposed to approve, some of these 

insignificant/de minimis activities must 

continue to comply with many of the 

requirements that would apply to 

sources needing to obtain 

preconstruction permits. We received 

no comments on our proposed 

approvals and are finalizing those 

approvals as consistent with 40 CFR 

51.160(e). 

II. Public Comment on Proposed Action 

EPA’s proposed action provided a 30- 

day public comment period. During this 

period, we received two comment 

letters, one from the Nevada Division of 

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Federal Register / Vol. 77, No. 202 / Thursday, October 18, 2012 / Rules and Regulations 64041 

2The preamble to EPA’s PM2.5 NSR 

Implementation Rule provided that States with SIPapproved PSD programs could continue to 

implement the program for particulate matter less 

than 10 micrometers (PM10) as a surrogate for 

meeting the PSD program requirements for PM2.5

pursuant to the PM10 Surrogate Policy. See 73 FR 

at 28341. As confirmed in a May 18, 2011 

rulemaking, however, EPA has ended the use of this 

policy both under the Federal PSD program and in 

SIP-approved PSD program areas. See 76 FR 28646 

(May 18, 2011). 

Environmental Protection (NDEP), dated 

September 7, 2012, and one from the 

Clark County Department of Air Quality 

(Clark or DAQ), dated September 6, 

2012. We summarize and provide 

responses to these comments below. 

Comment 1: Clark County disagreed 

with EPA’s statement that the 

applicability provisions in Section 12.1 

are deficient with respect to regulation 

of PM2.5 precursor emissions and stated 

that Section 12.1 addresses each of the 

pollutants identified by EPA as PM2.5

precursors (NOX, SO2, and VOCs). In 

addition, Clark County asserted that 

PM2.5 emissions are a subset of PM10

emissions, which Section 12.1 also 

addresses. Clark County stated that 

‘‘[a]lthough defining precursors to PM2.5

more explicitly might clarify the rule, 

the county believes the rule currently 

provides sufficient authority to regulate 

sources of these pollutants * * * .’’ 

EPA Response: We disagree. Section 

110(a)(2)(C) of the CAA requires, among 

other things, that each state have a 

permit program to provide for regulation 

of the construction and modification of 

minor stationary sources within the 

areas covered by the plan as necessary 

to assure that the NAAQS are achieved. 

Under EPA’s implementing regulations 

in 40 CFR 51.160–51.164, these permit 

programs must contain enforceable 

procedures that enable the permitting 

authority to determine whether the 

construction or modification of a 

stationary source will result in (1) a 

violation of applicable portions of the 

control strategy; or (2) interference with 

attainment or maintenance of a NAAQS 

in the State in which the proposed 

source (or modification) is located or in 

a neighboring State, and procedures for 

preventing any such construction or 

modification. For purposes of 

implementing the 1997 PM2.5 NAAQS, 

as explained in our TSD, States were 

required by EPA’s 2008 New Source 

Review implementing regulations for 

the 1997 PM2.5 NAAQS (‘‘PM2.5 NSR 

Implementation Rule’’) to revise their 

minor source programs to include direct 

and condensable PM2.5 emissions and 

PM2.5 precursor emissions in the same 

manner as included for purposes of 

PM2.5 major NSR. See TSD at 16 (citing 

73 FR 28321 at 28344, May 16, 2008). 

Clark County’s minor NSR program in 

Section 12.1 generally defines ‘‘minor 

source’’ as a stationary source that is not 

a major source and that has a potential 

to emit equal to or greater than specified 

levels for the following seven 

pollutants: PM10, CO, VOC, NOX, SO2, 

Lead (Pb), and H2S. See Section 12.1, 

subsection 12.1.1 (a) and (c) 

(definitions). Similarly, for purposes of 

regulating modifications at minor 

sources, Section 12.1 establishes 

‘‘significant’’ emission levels for these 

same seven pollutants and for Total 

Reduced Sulfur. Id. at subsection (g). 

These provisions are not adequate for 

purposes of implementing the PM2.5

NAAQS for three reasons. 

First, the provisions do not explicitly 

regulate sources of direct PM2.5

emissions. Second, the provisions do 

not address the condensable fraction of 

PM2.5 or PM10, which is required to be 

accounted for in permitting actions on 

or after January 1, 2011. 73 FR 28321 at 

28334 (May 16, 2008) (‘‘Because 

condensable PM emissions exist almost 

entirely in the 2.5 micrometer range and 

smaller, these emissions are inherently 

more significant for PM2.5 than for prior 

PM standards addressing larger 

particles’’); see also 75 FR 80118 

(December 21, 2010) (final rule 

establishing methods for measurement 

of filterable and condensable PM10 and 

PM2.5 emissions from stationary 

sources). Third, the provisions do not 

adequately address PM2.5 precursors. 

Although we agree with Clark County 

that these applicability provisions cover 

sources of NOX, SO2, and VOCs, which 

pollutants the EPA has defined as 

precursors to PM2.5, those applicability 

provisions in themselves do not ensure 

that emissions of the appropriate 

pollutants will be addressed as PM2.5

precursors in the minor source program 

in the same manner as included for 

purposes of PM2.5 major NSR. 

In response to our proposed 

disapproval of Section 12.1 with respect 

to the requirements for PM2.5, Clark 

asserted that the provisions governing 

PM10 emissions in Section 12.1 provide 

sufficient authority to regulate sources 

of direct PM2.5 emissions. We disagree 

with this assertion, particularly to the 

extent that Clark County may be 

suggesting that PM10 is an effective 

surrogate for PM2.5 in all cases. Effective 

May 16, 2011, EPA ended the states’ 

ability to use, as a matter of policy, 

evaluation of PM10 (including the PM10

NAAQS) as a surrogate for evaluation of 

PM2.5 in Prevention of Significant 

Deterioration (PSD) permitting actions, 

as had previously been allowed 

pursuant to a 1997 guidance document 

entitled ‘‘Interim Implementation for the 

New Source Review Requirements for 

PM2.5,’’ October 23, 1997 (‘‘PM10

Surrogate Policy’’).2 76 FR 28646 (May 

18, 2011). EPA terminated the use of the 

1997 PM10 Surrogate Policy in PSD 

permitting programs based on the 

Agency’s conclusion that the necessary 

technical tools to conduct PM2.5

analyses for PSD sources had become 

available and that it was therefore no 

longer appropriate to rely on the PM10

Surrogate Policy to protect the PM2.5

NAAQS. Id. at 28648. Thus, PSD permit 

applications must now be reviewed 

directly against the PM2.5 requirements. 

Id. at 28647. For these same reasons, we 

conclude that it is not appropriate for 

Clark County to rely categorically on the 

PM10 provisions in Section 12.1 to 

satisfy the requirements of CAA section 

110(a)(2)(C) with respect to the 1997 or 

2006 PM2.5 NAAQS. Consistent with 

EPA’s end to the use of the PM10

Surrogate Policy for PSD permit 

programs, minor NSR permit programs 

under CAA section 110(a)(2)(C) must 

require owners and operators of sources 

and permitting authorities to conduct 

permit-related PM2.5 analyses and may 

not allow the automatic use of PM10

analysis as a surrogate for satisfying 

PM2.5 requirements. 

In sum, Section 12.1 does not contain 

enforceable procedures that enable 

Clark County to determine whether the 

construction or modification of a 

stationary source of direct PM2.5

emissions and any emissions of PM2.5

precursors will result in either a 

violation of an applicable control 

strategy or interference with attainment 

or maintenance of the 1997 or 2006 

PM2.5 NAAQS, nor does the rule contain 

enforceable procedures for preventing 

construction or modification of such 

sources, as required by CAA section 

110(a)(2)(C) and 40 CFR 51.160–51.164. 

Consequently, we are disapproving 

Section 12.1 with respect to the 

requirement in CAA section 110(a)(2)(C) 

to regulate the construction and 

modification of stationary sources of 

PM2.5 emissions as necessary to assure 

that the 1997 and 2006 PM2.5 NAAQS 

are achieved. 

Comment 2: Clark County disagreed 

with EPA’s proposal to disapprove 

language regarding federal 

enforceability in subsection 

12.1.3.6(a)(5) and stated that it ‘‘could 

find no language [in the CAA or EPA 

regulations] that explicitly prohibits an 

applicant from specifying or declaring 

anything it deems appropriate in the 

information it submits.’’ Referencing an 

EPA guidance document addressing 

CAA title V (Part 70) permitting issues, 

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64042 Federal Register / Vol. 77, No. 202 / Thursday, October 18, 2012 / Rules and Regulations 

Clark County stated that ‘‘EPA indicated 

some precedent for declaring which of 

the conditions of an ‘authority to 

construct or operate’ permit would be 

federally enforceable within the context 

of a Part 70 Operating Permit 

application.’’ The County asserted that 

EPA’s authority to disapprove a state’s 

minor source program is extremely 

limited and that EPA may only 

disapprove such programs under CAA 

section 110(a)(2)(C) if they ‘‘interfere 

with attainment of the NAAQS or other 

applicable requirements of the Act.’’ 

Clark County stated its belief that ‘‘there 

can be provisions and conditions in 

minor source permits that do not pertain 

to SIP requirements, nor otherwise 

relate to any of the requirements of the 

Act,’’ such as requirements addressing 

noxious odors and public nuisances. 

Clark County stated that it had intended 

to ‘‘separately incorporate these 

conditions into a minor source permit 

without submitting the conditions, nor 

the mechanism for their adoption, as 

part of the SIP permit program,’’ and 

that such conditions should not be 

subject to federal enforcement or citizen 

suits under CAA section 113 or 304. 

EPA Response: We agree with the 

County that nothing in the CAA or EPA 

regulations prohibits a state from 

issuing permits for minor stationary 

sources containing requirements that are 

enforceable only under state law, and 

we understand that the County’s 

intention may have been to use minor 

NSR permits issued pursuant to Section 

12.1 both for purposes of implementing 

the SIP-approved minor NSR program 

and for purposes of implementing other 

state/local requirements not approved 

into the SIP. We are disapproving 

subsection 12.1.3.6(a)(5), however, 

because the current text of this 

provision is significantly misleading to 

the regulated community and the public 

with respect to EPA’s enforcement 

authorities under the CAA, and because 

Section 12.1 as a whole does not 

provide a reliable mechanism for 

distinguishing between federallyenforceable permit conditions and stateonly enforceable permit conditions, as 

explained further below. 

Under the CAA and EPA’s 

implementing regulations, all 

limitations and conditions in a permit 

issued pursuant to SIP-approved 

regulations, including SIP-approved 

minor NSR permit programs, are 

federally enforceable under the Act. See 

CAA 113(a)(1), (3), 42 U.S.C. 7413(a)(1), 

(3); 40 CFR 52.21(b)(17) (defining 

‘‘Federally enforceable’’ to include ‘‘any 

permit requirements established * * * 

under regulations approved pursuant to 

40 CFR part 51, subpart I’’); 40 CFR 

52.23 (‘‘Failure to comply with * * * 

any permit condition * * * issued 

pursuant to approved or promulgated 

regulations for the review of new or 

modified stationary or indirect sources 

* * * shall render the person or 

governmental entity so failing to comply 

in violation of a requirement of an 

applicable implementation plan and 

subject to enforcement action under 

section 113 of the Clean Air Act.’’); see 

also 54 FR 27274, 27282 (June 28, 1989) 

(noting that all construction permits 

issued under regulations approved 

pursuant to 40 CFR 51.160–165 are 

federally enforceable). Such permit 

conditions are also enforceable by 

citizens under CAA section 304 of the 

CAA. 42 U.S.C. 7604(a)(1), (f)(4) 

(authorizing citizen suit for violation of 

‘‘an emission standard or limitation 

under [the Act],’’ including any 

‘‘standard, limitation, or schedule 

established under any permit issued 

* * * under any applicable State 

implementation plan approved by the 

Administrator. * * *’’). Thus, upon 

EPA’s approval of Section 12.1 into the 

Clark County portion of the Nevada SIP, 

all of the terms and conditions of a 

permit issued under Section 12.1 are 

enforceable by the Administrator under 

CAA section 113 and by citizens under 

CAA section 304. 

By contrast, title V operating permits 

may contain permit conditions that are 

not federally enforceable. Specifically, 

EPA’s regulations to implement the 

operating permit program in title V of 

the CAA allow states to issue operating 

permits containing terms and conditions 

that are not federally enforceable, 

provided those terms and conditions are 

specifically identified as such in the 

permit. See 40 CFR 70.6(b)(2) (‘‘Permit 

content’’) (‘‘the permitting authority 

shall specifically designate as not being 

federally enforceable under the Act any 

terms and conditions included in the 

permit that are not required under the 

Act or under any of its applicable 

requirements’’). These regulations in 40 

CFR part 70, however, apply to state 

operating permit programs submitted to 

meet the requirements of title V of the 

CAA; they do not apply to 

preconstruction review permit programs 

submitted to meet the requirements of 

section 110(a)(2)(C) of the Act, which 

are, instead, subject to EPA’s regulations 

for review of new sources and 

modifications in 40 CFR part 51, subpart 

I. We note that although EPA does not 

require states to submit title V operating 

permit programs for SIP approval, states 

may choose to do so, e.g., to provide a 

mechanism for establishing federally 

enforceable permit limits that enable 

otherwise major sources to avoid PSD or 

Nonattainment NSR (also known as 

‘‘synthetic minor’’ permit limits). Once 

a state operating permit program is 

approved by EPA and incorporated into 

the applicable SIP under section 110 of 

the Act, all terms and conditions 

contained in a permit issued pursuant to 

such a program are considered federally 

enforceable. 40 CFR 52.21(b)(17) and 

52.23; see also 54 FR 27274 at 27281, 

27284 (June 28, 1989). 

Subsection 12.1.3.6(a)(5) of Clark 

County’s minor NSR rule states that a 

permit applicant may, at its option, 

include in its application ‘‘a declaration 

that it wants the entire permit, or 

specifically identified permit conditions 

or applicable requirements, to be 

federally enforceable.’’ On its face, this 

language allows a permit applicant to 

identify those permit conditions for 

which the applicant ‘‘wants’’ a federally 

enforceable requirement, without regard 

to whether the conditions so identified 

(or not identified) derive from SIPapproved requirements or state-only 

requirements. At minimum, this 

provision is misleading to the regulated 

community and the public because it 

suggests that an applicant may request, 

and that Clark County may issue, permit 

conditions limiting federal enforcement 

authority with respect to permit 

conditions that derive from SIPapproved requirements in Section 12.1. 

Given that all conditions of a permit 

issued pursuant to a SIP-approved 

program are enforceable under sections 

113 and 304 the Act, and that permit 

conditions deriving only from state law 

are not federally enforceable, it is not 

appropriate to suggest that permit 

applicants have such an undefined 

‘‘option.’’ 

We recognize, however, that Clark 

County may have intended to use minor 

NSR permits issued under Section 12.1 

to implement not only the substantive 

requirements of Section 12.1, all of 

which are federally enforceable upon 

SIP approval, but also to implement 

requirements in other state regulations 

not submitted for SIP approval—e.g., 

conditions addressing noxious odors or 

public nuisances as defined under state 

law. To the extent that this was the 

County’s intent, we recommend that the 

County add separate provisions to 

Section 12.1 that authorize the County 

to include ‘‘state-only’’ terms and 

conditions in a minor source permit 

issued pursuant to Section 12.1, 

provided those terms and conditions 

and the state/local requirements that 

they implement are specifically 

identified in the permit. In this case, 

Clark County may provide permit 

applicants the option of identifying 

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Federal Register / Vol. 77, No. 202 / Thursday, October 18, 2012 / Rules and Regulations 64043 

3For a non-EUSGU, this may be any consecutive 

24-month period ‘‘within the 10-year period 

immediately preceding either the date the owner or 

operator begins actual construction of the project, 

or the date a complete permit application is 

received by the reviewing authority for a permit 

required either under this section or under a plan 

approved by the Administrator, whichever is 

earlier, except that the 10-year period shall not 

include any period earlier than November 15, 

1990.’’ 40 CFR 51.165(a)(1)(xxxv)(B) and 

51.166(b)(47)(ii). 

such requirements as ‘‘state-only’’ 

requirements, provided the rule clearly 

limits the option to those state-only 

requirements. For example, subsection 

12.1.3.6(a)(5) could be revised to read as 

follows: 

At the option of the applicant, an 

application may identify for the Control 

Officer’s consideration those permit 

conditions that do not derive from 

requirements of the Clean Air Act or 

regulations approved into the applicable 

Nevada SIP and that the applicant believes 

should, therefore, be identified in the permit 

as conditions enforceable only under state 

law. 

Comment 3: Clark County questioned 

EPA’s proposal to disapprove the 

County’s definition of ‘‘baseline actual 

emissions’’ (BAE) in Section 12.2 and 

Section 12.3 in several respects. First, 

the County asserted that with respect to 

existing electric utility steam generating 

units (EUSGUs), notwithstanding its use 

of the phrase ‘‘as of the particular date’’ 

in its definition of BAE, its definition is 

at least as stringent as the corresponding 

federal regulation because EPA’s 

regulations ‘‘contain no requirement for 

any adjustment of compliant emissions 

whatsoever’’ for EUSGUs. Second, the 

County recognized that its definition 

differed from EPA’s definition of BAE 

for existing emission units other than 

EUSGUs (i.e., non-EUSGUs) but stated 

that this difference was intentional and 

necessary because ‘‘EPA does not 

interpret or implement the definition [of 

BAE] consistent with its plain 

meaning.’’ Quoting from EPA’s 

explanation, in the preamble to EPA’s 

2002 final rule promulgating this 

definition (67 FR at 80197, December 

31, 2002), of the meaning of the term 

‘‘current’’ in the context of evaluating a 

contemporaneous emissions change for 

netting purposes, Clark County asserted 

that it ‘‘implements its rule in the same 

manner EPA does’’ and that ‘‘rather than 

codifying rule language inconsistent 

with this interpretation, the county has 

adopted rule language consistent with 

both its own interpretation and practice 

and EPA’s interpretation and practice.’’ 

EPA Response: We understand that 

Clark County’s definition of BAE 

reflects an attempt to clarify the 

methodology for calculating BAE and, 

in response to the County’s comments, 

we are approving the County’s 

definitions of this term, with one 

narrow exception discussed below. We 

remain concerned, however, about 

ambiguities in the terms and strongly 

recommend that the County revise the 

definitions at the next opportunity to 

ensure that modifications at existing 

sources are subject to clear and 

consistent criteria for calculating BAE. 

Under EPA’s PSD and NSR 

applicability provisions for ‘‘major 

modifications,’’ both the assessment of 

whether a ‘‘significant emissions 

increase’’ has occurred (step 1 of the 

applicability analysis) and the 

assessment of creditable emissions 

increases or decreases which occurred 

during a prior ‘‘contemporaneous’’ 

period (step 2 of the applicability 

analysis) require calculation of 

‘‘baseline actual emissions’’ (BAE). See 

40 CFR 51.165(a)(2)(ii)(B) and 

51.166(a)(7)(iv)(b) (procedures for 

calculating emissions increases; 40 CFR 

51.165(a)(1)(vi) and 51.166(b)(3)(i) 

(definition of ‘‘net emissions increase’’). 

Thus, a calculation of BAE is required 

both for the project under review and 

for any previous (‘‘contemporaneous’’) 

changes that resulted in creditable 

emissions increases or decreases. In 

both cases, EPA’s definition of BAE 

requires adjustments to the emission 

calculations to ensure that any 

emissions exceeding certain applicable 

requirements are not included in 

calculating the BAE. 

Generally, for existing emission units, 

BAE is defined as ‘‘the average rate, in 

tons per year, at which the unit actually 

emitted [a regulated NSR] pollutant’’ 

during any consecutive 24-month 

period selected by the owner or operator 

within a 5-year or 10-year period 

immediately preceding the date that 

actual construction begins, depending 

upon the type of unit being modified 

and with limited exceptions. 40 CFR 

51.165(a)(1)(xxxv) and 51.166(b)(47). 

For any existing emissions unit other 

than an electric utility steam generating 

unit (i.e., any existing ‘‘non-EUSGU’’), 

EPA’s definition of BAE requires, among 

other things, that the average emissions 

rate ‘‘be adjusted downward to exclude 

any emissions that would have 

exceeded an emission limitation with 

which the major stationary source must 

currently comply, had such major 

stationary source been required to 

comply with such limitations during the 

consecutive 24-month period.’’ 40 CFR 

51.165(a)(1)(xxxv)(B)(3) and 

51.166(b)(47)(ii)(c). The purpose of this 

requirement is to ensure that any 

emissions that are not allowed under 

any legally enforceable limitations and 

that apply at the time of the project are 

not counted as part of BAE. See 67 FR 

80186, 80195 (December 31, 2002) 

(source owners/operators must ‘‘identify 

the most current legally enforceable 

limits on your emissions unit’’ and ‘‘[i]f 

these legally enforceable emission 

limitations and operating restrictions 

are more stringent than those that 

applied during the 24-month period, 

you must adjust downward the average 

annual emissions rate that you 

calculated from the consecutive 24- 

month period to reflect these current 

restrictions’’); see also 67 FR at 80201 

(‘‘The approach that we have adopted 

allows you to reference plant capacity 

that has actually been used, but not 

pollution levels that are not legally 

allowed at the time the modification is 

to occur.’’). 

For the calculation of BAE in step 1 

of the applicability analysis for a 

modification at an existing non-EUSGU, 

the reference to emission limitations 

with which the source ‘‘must currently 

comply, had [the] source been required 

to comply with such limitations during 

the consecutive 24-month period,’’ is in 

reference to only one point in time—i.e., 

when the project under review occurs. 

Thus, if the average emission rate 

calculated for the selected 24-month 

period 3 exceeds an emission limitation 

that applies at the time the project 

under review occurs, the past emissions 

in excess of that current emission 

limitation must be excluded from the 

calculation of BAE for the project under 

review. See 67 FR 80186 at 80195, 

80201. 

For the netting methodology in step 2 

(i.e., for purposes of calculating 

creditable increases and decreases in 

emissions from changes that are 

‘‘contemporaneous’’ with the project 

under review), the term ‘‘current’’ may 

have multiple defining points, 

depending on the number of 

‘‘contemporaneous’’ changes being 

evaluated. EPA explained the meaning 

of ‘‘current’’ in the context of a netting 

analysis for an existing non-EUSGU in 

the preamble to the final rule 

promulgating sections 

51.165(a)(1)(xxxv)(B)(3) and 

51.166(b)(47), as follows: 

Although we are not changing our 

definition of ‘‘contemporaneous,’’ today’s 

action allows existing [non-EUSGUs] to 

calculate the [BAE] for each 

contemporaneous event using the 10-year 

look back period. That is, you can select any 

consecutive 24-month period during the 10- 

year period immediately preceding the 

change occurring in the contemporaneous 

period to determine the [BAE] for each 

creditable emissions change. Generally, for 

each emissions unit at which a 

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64044 Federal Register / Vol. 77, No. 202 / Thursday, October 18, 2012 / Rules and Regulations 

4Subsection 12.2.2(c)(2)(D) does not contain this 

language and instead contains language tracking 

EPA’s definition in 40 CFR 51.166(b)(47)(ii)(c), but 

this appears to be a drafting error, as discussed 

further below. 

contemporaneous emissions change has 

occurred, you should use the 10-year look 

back period relevant to that change [footnote 

omitted]. When evaluating emissions 

increases from multi-unit modifications, if 

more than one emissions unit was changed 

as part of a single project during the 

contemporaneous period, you may select a 

separate consecutive 24-month period to 

represent each emissions unit that is part of 

the project. In any case, the calculated [BAE] 

for each emissions unit must be adjusted to 

reflect the most current emission limitations 

(including operational restrictions) applying 

to that unit. ‘‘Current’’ in the context of a 

contemporaneous emissions change refers to 

limitations on emissions and source 

operation that existed just prior to the date 

of the contemporaneous change. 

67 FR 80186, 80197 (December 31, 

2002). 

Thus, for each ‘‘contemporaneous’’ 

change that is considered in a netting 

analysis, the reference in sections 

51.165(a)(1)(xxxv)(B)(3) and 

51.166(b)(47)(ii)(c) to emission 

limitations with which the source ‘‘must 

currently comply, had [the] source been 

required to comply with such 

limitations during the consecutive 24- 

month period,’’ is in reference to 

requirements that applied just before the 

date of the particular 

‘‘contemporaneous’’ change. As with 

those ‘‘current’’ emission limits that 

must be reflected in the BAE for the 

project under review, those emission 

limits that applied to a particular unit 

just before it underwent a prior 

‘‘contemporaneous’’ change (i.e., the 

most ‘‘current’’ applicable requirements 

at the time of the change) must be 

reflected in the BAE for that particular 

change before any emissions increases 

or decreases associated with it may be 

credited in the netting analysis. 

Clark County’s definitions of BAE for 

non-EUSGUs in Section 12.2 and 12.3 

require downward adjustments in 

average emission rates to exclude 

emissions that exceed applicable 

emission limitations but use the phrase 

‘‘the particular date’’ instead of 

‘‘currently’’ to define the point in time 

that governs the identification of 

applicable emission limitations. See 

Section 12.2, subsection 

12.2.2(c)(1)(B)(i) and (2)(D); Section 

12.3, subsection 12.3.2(c)(1)(C) and 

(2)(D). Specifically, the County’s 

definitions of BAE require downward 

adjustments to average emission rates 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.’’ Id. (emphasis added).4

These definitions also contain a 

sentence providing further direction on 

the calculation of BAE only for 

contemporaneous projects, as follows: 

‘‘For the purposes of determining [BAE] 

for contemporaneous changes pursuant 

to [the definition of NEI], the particular 

date is the date on which the particular 

change occurred.’’ Id. Although these 

provisions differ from the language in 

EPA’s definition of BAE in 40 CFR 

51.165(a)(1)(xxxv)(B) and 

51.166(b)(47)(ii), the language is 

generally consistent with EPA’s 

interpretative statements in the 

preamble to the 2002 rulemaking, as 

discussed above, and we understand the 

County intends to implement these 

provisions consistent with those EPA 

interpretations. Thus, we are approving 

the definitions, with one narrow 

exception for what appears to be a 

drafting error in the definition of BAE 

for non-EUSGUs in subsection 

12.2.2(c)(2)(D), as discussed further 

below. However, we strongly encourage 

the County to clarify the meaning of the 

phrase ‘‘the particular date’’ for 

purposes of calculating BAE both for the 

project under review (step 1) and for 

any contemporaneous changes pursuant 

to the definition of NEI (step 2). We 

recommend that the County provide 

such a clarification in the regulatory text 

itself, so that the definition is clear on 

its face and consistent with EPA’s 

interpretative statements in the 

preamble to the final rule promulgating 

these definitions (67 FR 80186). 

Alternatively, Clark County may 

adopt BAE definitions that track EPA’s 

regulatory language in 40 CFR 

51.165(a)(1)(xxxv)(B)(3) and 

51.166(b)(47)(ii)(c). Although we 

recognize that EPA’s regulatory text 

does not specify the meaning of 

‘‘currently’’ in the context of assessing 

either the project under review or prior 

contemporaneous changes, EPA 

provided an interpretation of this term 

in the preamble to the 2002 rulemaking 

(67 FR 80186). 

With respect to Clark County’s 

definition of BAE for non-EUSGUs in 

subsection 12.2.2(c)(2)(D), we are 

disapproving this provision because the 

definition is internally inconsistent and 

confusing. Subsection 12.2.2(c)(2)(D) 

uses language consistent with EPA’s 

definition in the first sentence (‘‘The 

average rate shall be adjusted downward 

to exclude any emissions that would 

have exceeded an emission limitation 

with which the major stationary source 

must currently comply had such 

[source] been required to comply with 

such limitations during the consecutive 

24-month period’’), but refers, in the 

second sentence, to language that 

deviates from EPA’s definition without 

explanation (‘‘For the purposes of 

determining the baseline actual 

emissions for contemporaneous changes 

pursuant to paragraph (ii)(1)(B) of the 

definition of [NEI], the particular date is 

the date on which the particular change 

occurred’’). This internal inconsistency 

is problematic, as neither the regulatory 

text nor any supporting analysis 

associated with this rulemaking 

explains whether/how the phrase ‘‘the 

particular date’’ in the second sentence 

informs the phrase ‘‘currently comply’’ 

in the first sentence of subsection 

12.2.2(c)(2)(D). Although we recognize 

that this may simply be a drafting error 

and that Clark County may have 

intended to use the phrase ‘‘as of the 

particular date’’ in this provision, we 

are disapproving the provision because 

on its face it is confusing and raises 

enforceability concerns. 

Comment 4: Clark County questioned 

EPA’s proposal to disapprove the 

definition of ‘‘net emissions increase’’ 

(NEI) in Section 12.2 and strongly 

disagreed, in particular, with the 

statement in EPA’s TSD that EPA’s 

regulatory definition of NEI ‘‘does not 

call for any assessment of actual 

emissions after a contemporaneous 

project.’’ The County stated that the 

federal definition of NEI expressly 

requires that NEI be calculated using the 

difference between baseline actual 

emissions before a contemporaneous 

project and the new level of actual 

emissions resulting from that project 

and asserted that ‘‘[t]he only sensible 

interpretation of the phrase ‘new level 

of actual emissions’ in this context is 

‘the actual emissions after the 

contemporaneous project.’ ’’ The County 

suggested that EPA clarify what it 

means by ‘‘does not call for any 

assessment of actual emissions after a 

contemporaneous project.’’ 

EPA Response: EPA agrees that our 

explanation of this issue in our TSD was 

not entirely accurate or clear. For 

example, our statement that EPA’s 

definition of ‘‘net emissions increase’’ 

(NEI) ‘‘does not call for any assessment 

of actual emissions after a 

contemporaneous project’’ was 

incorrect. As the County correctly notes, 

for purposes of identifying creditable 

increases and decreases in emissions 

occurring prior to the particular 

physical or operational change under 

review, during a period that is 

‘‘contemporaneous’’ with that particular 

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5These two provisions, which are identical, state 

as follows: In general, actual emissions as of a 

particular date shall equal the average rate, in tons 

per year, at which the unit actually emitted the 

pollutant during a consecutive 24-month period 

which precedes the particular date and which is 

representative of normal source operation. The 

reviewing authority shall allow the use of a 

different time period upon a determination that it 

is more representative of normal source operation. 

Actual emissions shall be calculated using the 

unit’s actual operating hours, production rates, and 

types of materials processed, stored, or combusted 

during the selected time period. 

40 CFR 51.165(a)(1)(xii)(B), 51.166(b)(21)(ii). 

6The applicable definition of ‘‘actual emissions’’ 

in this context is in subsection 12.2.2(a), which 

contains language identical to EPA’s definition of 

‘‘actual emissions’’ in 40 CFR 51.166(b)(21)(ii). See 

Section 12.2, subsection 12.2.2 (Definitions) 

(‘‘Unless the context otherwise requires, the 

following terms shall have the meanings set forth 

[in subsection 12.2.2] for the purposes of Section 

12.2 * * * .’’) 

change, EPA’s definition of NEI requires 

an assessment of ‘‘baseline actual 

emissions’’ before and ‘‘actual 

emissions’’ after the prior 

‘‘contemporaneous’’ project. See, e.g., 40 

CFR 51.166(b)(3)(vi)(a) (‘‘[a] decrease in 

actual emissions is creditable only to 

the extent that: (a) The old level of 

actual emissions or the old level of 

allowable emissions, whichever is 

lower, exceeds the new level of actual 

emissions * * *.’’). However, although 

we understand that Clark County’s 

definition of NEI reflects an attempt to 

clarify the term, we are disapproving it 

because the County has not 

demonstrated that its definition is more 

stringent than or at least as stringent in 

all respects as EPA’s corresponding 

definition. See 40 CFR 51.165(a)(1), 

51.166(a)(7)(iv). Specifically, the 

definition of NEI in Section 12.2 is 

deficient because it does not establish 

an appropriate method for calculating 

the ‘‘actual emissions’’ after a previous 

contemporaneous project, as explained 

further below, and the substantively 

identical definition of NEI in Section 

12.3 is also deficient for the same 

reasons. 

Under EPA’s PSD and NSR 

regulations, a determination as to 

whether a significant emissions increase 

is a ‘‘major modification’’ requires a 

determination as to whether the change 

has resulted in a significant ‘‘net 

emissions increase.’’ See 40 CFR 

51.165(a)(1)(v) and 51.166(b)(2) 

(defining ‘‘major modification’’); 40 CFR 

51.165(a)(1)(vi) and 51.166(b)(3) 

(defining NEI). EPA’s definition of NEI 

in 40 CFR 51.165(a)(1)(vi) and 

51.166(b)(3), in turn, requires a 

calculation of all creditable increases 

and decreases which occurred during a 

previous period that is 

‘‘contemporaneous’’ with the particular 

project under review. The definition of 

NEI requires that ‘‘[b]aseline actual 

emissions for calculating increases and 

decreases’’ associated with a 

contemporaneous project be determined 

as provided in EPA’s definition of 

‘‘baseline actual emissions’’ (40 CFR 

51.165(a)(xxxv) and 51.166(b)(47)), with 

limited exceptions. See 40 CFR 

51.165(a)(1)(vi)(A)(2) and 

51.166(b)(3)(i)(b). 

EPA’s definition of NEI does not 

specify how the actual emissions after 

(i.e., resulting from) a prior 

contemporaneous project must be 

calculated. Id. Importantly, however, for 

purposes of determining creditable 

increases and decreases in a netting 

evaluation, EPA’s definition of NEI 

provides that paragraphs 40 CFR 

51.165(a)(1)(xii)(B) and 

51.166(b)(21)(ii) 5 shall not apply in 

determining post-project actual 

emissions. Those sections define ‘‘actual 

emissions’’ based on actual operating 

hours, production rates, and types of 

materials processed, stored, or 

combusted during a previous 24-month 

period that is ‘‘representative of normal 

source operation.’’ See 40 CFR 

51.165(a)(1)(vi)(G) and 51.166(b)(3)(viii). 

Thus, only ‘‘source-specific allowable 

emissions’’ or ‘‘potential to emit’’ may 

be used to calculate the actual emissions 

after (i.e., resulting from) a prior 

contemporaneous project in the netting 

analysis. See 40 CFR 

51.165(a)(1)(xii)(C), (D) and 

51.166(b)(21)(iii), (iv). EPA regulations 

specifically provide that the ‘‘actual 

emissions’’ of an emissions unit that has 

not begun operations as of a particular 

date must be equal to its ‘‘potential to 

emit’’ on that date. 40 CFR 

51.165(a)(1)(xii)(D) and 51.166(b)(21)(iv) 

(‘‘For any emissions unit that has not 

begun normal operations on the 

particular date, actual emissions shall 

equal the potential to emit of the unit on 

that date.’’) 

Consistent with these regulations, 

EPA’s longstanding policy provides that 

where a ‘‘contemporaneous’’ project 

‘‘will affect the normal operations of an 

existing emissions unit (as in the case of 

a change which could result in 

increased use of the unit), ‘actual 

emissions’ after the change must be 

assumed to be equal to ‘potential to 

emit.’’’ Memorandum dated September 

18, 1989, from John Calagni, Director, 

Air Quality Management Division, to 

William B. Hathaway, Director, Air, 

Pesticides, and Toxics Division, 

‘‘Request for Clarification of Policy 

Regarding the ‘Net Emissions Increase’’’ 

(1989 NEI Policy Memo) at 3 (quoting 40 

CFR 52.21(b)(21)(iv)). Alternatively, 

where ‘‘allowable emissions’’ are the 

same as or less than the ‘‘potential to 

emit’’ for an emissions unit, ‘‘allowable 

emissions’’ may be used to define the 

‘‘actual emissions’’ of that unit after the 

change. Id. 

Finally, with respect to a decrease in 

actual emissions associated with a 

contemporaneous change, such decrease 

is creditable only when three specific 

criteria are met: (1) The old level of 

actual emissions or the old level of 

allowable emissions, whichever is 

lower, exceeds the new level of actual 

emissions; (2) it is enforceable as a 

practical matter at and after the time 

that actual construction on the 

particular change begins; and (3) it has 

approximately the same qualitative 

significance for public health and 

welfare as that attributed to the increase 

from the particular change. 40 CFR 

51.165(a)(1)(vi)(E) and 51.166(b)(3)(vi). 

The second of these three criteria 

essentially requires the use of 

‘‘allowable emissions’’ or ‘‘potential to 

emit’’ to define the ‘‘actual emissions’’ 

of a unit after a prior 

‘‘contemporaneous’’ change in order to 

credit an associated emissions decrease 

in the netting evaluation. 

The three additional paragraphs 

contained in the Section 12.2 definition 

of NEI (under subsection 

12.2.2(ii)(1)(C)), which are not included 

in EPA’s definition of NEI in 40 CFR 

51.166(b)(3), state as follows: 

(i) For the purposes of calculating 

increases under paragraph (1)(B) of this 

definition, actual emissions after the 

contemporaneous project shall be 

determined as provided in the 

definition of actual emissions, except as 

provided in paragraph (1)(C)(iii) of this 

definition. 

(ii) For the purposes of calculating 

increases under paragraph (1)(B) of this 

definition, if the Control Officer 

determines that there is no sufficiently 

representative time period of actual 

emissions after a contemporaneous 

project, pursuant to Section 12.2.2(a)(1), 

actual emissions after the 

contemporaneous project shall be 

determined as provided in the 

definition of projected actual emissions. 

(iii) For the purposes of calculating 

decreases under paragraph (1)(B) of this 

definition, actual emissions after the 

contemporaneous project shall be 

determined as provided in the 

definition of actual emissions. 

Section 12.2, subsection 

12.2.2(ii)(1)(C)(i)–(iii).6

These three provisions are 

inconsistent with EPA regulations and 

longstanding interpretations, for the 

following reasons. 

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7We assume that Clark County intended here to 

reference the definition of ‘‘projected actual 

emissions’’ in subsection 12.2.2(nn) of Section 12.2. 

8EPA purposefully did not extend the actual-toprojected-actual test to the netting evaluation in 

step two of the applicability test, because the 

Agency believed it was ‘‘appropriate [for] projects 

that will result in a significant emissions increase 

under step one of the process, and, thus, are more 

likely to adversely impact air quality, to undergo a 

more conservative examination using the actual-topotential methodology under step two of the 

analysis.’’ 2011 NEI Letter at 3. 

First, subsection 12.2.2(ii)(1)(C)(i) 

states that for the purposes of 

calculating creditable increases that are 

contemporaneous with a particular 

change, ‘‘actual emissions after the 

contemporaneous project shall be 

determined as provided in the 

definition of actual emissions’’ with 

limited exceptions (emphasis added), 

but it does not prohibit use of ‘‘actual 

emissions’’ as defined in subsection 

12.2.2(a)(1) (i.e., using the unit’s ‘‘actual 

operating hours, production rates, and 

types of materials processed, stored, or 

combusted during’’ a previous 24-month 

period that is ‘‘representative of normal 

source operation’’). This is problematic 

because the language defining ‘‘actual 

emissions’’ in subsection 12.2.2(a)(1) is 

substantively identical to EPA’s 

language defining ‘‘actual emissions’’ in 

40 CFR 51.166(b)(21)(ii), which as noted 

above EPA’s definition of BAE explicitly 

prohibits source owners/operators from 

using for purposes of determining 

creditable increases and decreases in a 

netting evaluation. See 40 CFR 

51.165(a)(1)(vi)(G) and 51.166(b)(3)(viii). 

For purposes of determining ‘‘actual 

emissions’’ immediately after a 

contemporaneous physical or 

operational change, use of this 

definition of ‘‘actual emissions’’ is not 

appropriate because there is no relevant 

data regarding operating hours, 

production rates, and types of materials 

processed, stored, or combusted. Rather, 

‘‘actual emissions’’ in this context must 

be equal to the new or modified unit’s 

‘‘potential to emit’’ (PTE) or ‘‘allowable 

emissions,’’ where allowable emissions 

are the same as or less than PTE. See 40 

CFR 51.166(b)(21)(iv) and 1989 NEI 

Policy Memo at 3. 

Second, subsection 12.2.2(ii)(1)(C)(ii) 

states that ‘‘if the Control Officer 

determines that there is no sufficiently 

representative time period of actual 

emissions after a contemporaneous 

project, pursuant to Section 12.2.2(a)(1), 

actual emissions after the 

contemporaneous project shall be 

determined as provided in the 

definition of projected actual 

emissions.’’ 7 As discussed above, for 

purposes of a netting analysis, EPA 

regulations require that the ‘‘actual 

emissions’’ following a 

contemporaneous change be calculated 

based on PTE or ‘‘allowable emissions,’’ 

not projected actual emissions. 40 CFR 

51.165(a)(1)(xii)(C), (D) and 

51.166(b)(21)(iii), (iv); see also 67 FR 

80186, 80191 (December 31, 2002) 

(noting that the actual-to-projected 

actual applicability test should be used 

only for purposes of determining 

whether a proposed modification results 

in a significant emissions increase (i.e., 

step 1 of the applicability analysis) and 

‘‘should not be used when determining 

a source’s actual emissions on a 

particular date as may be used for other 

NSR-related requirements’’). As EPA 

explained in April 2011, EPA revised 

the PSD and NNSR rules in 2002 by 

adding provisions to implement the new 

‘‘actual-to-projected-actual’’ test for 

certain projects in step one of the 

applicability analysis but left the 

existing regulatory structure in place for 

implementing step two. See letter dated 

April 4, 2011, from Cheryl L. Newton, 

Director, Air and Radiation Division, 

EPA Region 5, to Keith Baugues, 

Assistant Commissioner, Office of Air 

Quality, Indiana Department of 

Environmental Management (2011 NEI 

Letter) at 3 (citing, e.g., 40 CFR 

52.21(a)(2)(iv)(b)).8 Neither the 

definition of significant NEI in 40 CFR 

51.166(b)(3) nor any of the definitions 

used to calculate a significant NEI use 

‘‘projected actual emissions.’’ 2011 NEI 

Letter at 3. 

Finally, subsection 12.2.2(ii)(1)(C)(iii) 

is substantively identical to subsection 

12.2.2(ii)(1)(C)(i), except that it applies 

to calculating emission decreases 

instead of increases associated with a 

contemporaneous change. This 

provision is problematic because it calls 

for the use of ‘‘actual emissions’’ as 

defined in 40 CFR 51.166(b)(21)(ii) for 

purposes of calculating creditable 

decreases in a netting analysis, which as 

discussed above is inconsistent with 

EPA’s definition of NEI. See 40 CFR 

51.166(b)(3)(viii). The use of ‘‘actual 

emissions’’ as defined in section 

51.166(b)(21)(ii) for this purpose also 

conflicts with EPA’s criteria in 40 CFR 

51.166(b)(3)(vi) for crediting emission 

decreases associated with a 

contemporaneous change, because such 

‘‘actual emissions’’ generally are not 

enforceable as a practical matter. 

For all of these reasons, we are 

disapproving subsections 

12.2.2(ii)(1)(C)(i), (ii), and (iii) in Clark 

County’s definition of NEI, because 

these provisions are inconsistent with 

EPA’s definition of NEI in 40 CFR 

51.166(b)(3) and relevant policy. For the 

same reasons, we are also disapproving 

identical language in Clark County’s 

definition of NEI in Section 12.3, 

subsections 12.3.2(aa)(1)(B)(ii), (iii), and 

(iv). See 40 CFR 51.165(a)(1)(vi)(E) and 

(G). Clark County may address these 

deficiencies by adopting language 

consistent with EPA’s prohibition on 

use of ‘‘actual emissions’’ as defined in 

51.165(a)(1)(xii)(B) and 40 CFR 

51.166(b)(21)(ii), so that the definitions 

of NEI in both Section 12.3 and Section 

12.2 track EPA’s corresponding 

definitions in 40 CFR 51.165(a)(1)(vi) 

and 51.166(b)(3). Alternatively, should 

Clark County seek to further clarify the 

methodology for calculating the 

emissions increases or decreases 

resulting from a contemporaneous 

project, we recommend that the County 

replace the three paragraphs discussed 

above with the following language: 

For the purposes of calculating emissions 

increases or decreases under paragraph (1)(B) 

of this definition, actual emissions after the 

contemporaneous project shall be equal to 

the ‘‘potential to emit’’ or ‘‘allowable 

emissions’’ of the project, whichever is 

lower. 

Comment 5: With respect to the 

Nevada Division of Environmental 

Protection’s (NDEP) obligation to submit 

NSR SIP revisions meeting the 

applicable requirements of subpart 2 of 

part D, title I of the Act, for the portion 

of Clark County that is designated and 

classified as ‘‘marginal’’ nonattainment 

for the 1997 8-hour ozone standard, 

NDEP expressed concern about EPA’s 

suggestion that the State could address 

the regulatory gap by submitting a 

revised rule extending the existing 

construction prohibition in NAC section 

445B.22083 to cover the entire Clark 

County ozone nonattainment area. 

NDEP stated that such an expansion of 

the existing construction prohibition is 

not a viable option given current 

economic conditions and stated that 

there are ‘‘two equally obvious and 

significantly less harmful options’’ for 

addressing this requirement. 

First, NDEP emphasized that EPA has 

made a clean data finding for the 1997 

8-hour ozone nonattainment area within 

Clark County and that the State is 

awaiting EPA action on Clark County’s 

redesignation request and maintenance 

plan for this standard. Both NDEP and 

Clark County urged EPA to take action 

soon on this redesignation request and 

maintenance plan. 

Second, NDEP stated that it has 

nonattainment provisions in its SIP and 

that NDEP ‘‘is not required to adopt a 

program if it has adequate, equivalentperforming regulatory provisions.’’ 

NDEP stated that EPA has not provided 

specific guidance on the NSR 

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Federal Register / Vol. 77, No. 202 / Thursday, October 18, 2012 / Rules and Regulations 64047 

9Final approval of the rules in table 1 supersedes 

the rules listed in table 2, above, in the existing 

Nevada SIP. 

deficiencies but that NDEP is currently 

reviewing its nonattainment provisions. 

EPA Response: As an initial matter, 

we note that comments regarding 

NDEP’s NSR obligations with respect to 

stationary sources under its jurisdiction 

within the Clark County ozone 

nonattainment area are outside the 

scope of today’s action on Clark 

County’s NSR SIP submission. Our 

proposed rule identified this issue not 

as a current program deficiency but 

rather as a courtesy to remind the State 

of upcoming NSR obligations for the 

1997 8-hour ozone standard. Given our 

proposed action on Clark County’s NSR 

SIP submission highlighted this 

upcoming obligation on NDEP’s part, 

however, we respond below to the 

State’s and Clark County’s comments on 

this issue. 

EPA appreciates NDEP’s concerns 

about expanding the existing 

construction prohibition in NAC section 

445B.22083 and agrees that several 

other options are available to address 

the State’s NSR obligations with respect 

to ozone precursor emissions from fossil 

fuel-fired steam-powered power plants 

within Clark County. First, as both 

NDEP and Clark County correctly note, 

in April 2011 the State submitted a 

redesignation request and maintenance 

plan for the 1997 8-hour ozone 

standard, which became complete by 

operation of law in October 2011. EPA 

is currently reviewing this submission 

and commits to work with both agencies 

to address the State’s request for 

redesignation to attainment. As NDEP 

correctly notes, EPA determined based 

on ambient air monitoring data that the 

ozone nonattainment area within Clark 

County has attained the 1997 8-hour 

ozone NAAQS (76 FR 17343, March 29, 

2011), which is a prerequisite to 

redesignation to attainment under 

section 107(d)(3)(E) of the CAA. A final 

rule redesignating the Clark County 

ozone nonattainment area to attainment 

for the 1997 8-hour ozone NAAQS 

consistent with section 107(d)(3)(E) of 

the CAA would eliminate the State’s 

NSR obligations for purposes of the 

1997 8-hour ozone NAAQS. 

Second, with respect to NDEP’s 

statement that the existing Nevada SIP 

contains nonattainment provisions and 

that NDEP is not required to adopt an 

NSR program if it has adequate, 

equivalent regulatory provisions, we are 

aware of several nonattainment NSR 

provisions in the existing Nevada SIP, 

including certain provisions in Article 

13 of the Nevada Air Quality 

Regulations (‘‘Point Sources’’) and in 

the Utility Environmental Protection 

Act in title 58 of the Nevada Revised 

Statutes. We stand ready to work with 

NDEP in evaluating the relevant SIP 

provisions to determine whether they 

adequately address the State’s current 

NSR obligations with respect to 

stationary sources under NDEP 

jurisdiction for the 1997 8-hour ozone 

NAAQS in Clark County. 

III. Final Action 

For the reasons provided in our 

proposed rule and above in response to 

comments, pursuant to sections 110(k) 

and 301(a) of the Clean Air Act, EPA is 

finalizing a limited approval and 

limited disapproval of new and 

amended regulations that govern 

applications for, and issuance of, 

permits for stationary sources under the 

jurisdiction of the Clark County 

Department of Air Quality. Specifically, 

EPA is finalizing a limited approval and 

limited disapproval of the new and 

amended regulations listed in table 1 

above as a revision to Clark County 

portion of the Nevada SIP. 

EPA is taking this action because, 

although we find that the new and 

amended rules meet most of the 

applicable requirements for such NSR 

programs and that the SIP revisions 

improve the existing SIP, we have also 

found certain deficiencies that prevent 

full approval. 

Specifically, our limited disapproval 

of the minor NSR permit program in 

Section 12.1 is based on the following 

deficiencies: (1) The absence of 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 2006 

24-hour PM2.5 NAAQS and the 2008 

Lead NAAQS; (2) inappropriate 

language regarding federal 

enforceability of permits issued under 

Section 12.1; (3) the absence of 

provisions to ensure that approval of 

any construction or modification must 

not affect the responsibility of the owner 

or operator to comply with applicable 

portions of the control strategy; (4) 

inappropriate exemptions for sources 

identified in a separate rule that is not 

SIP-approved (Section 12.5); (5) the 

absence of applicability provisions that 

cover sources of PM2.5 or PM2.5

precursor emissions; and (6) the absence 

of 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. 

Our limited disapproval of the PSD 

permit program in Section 12.2 is based 

on the following deficiencies: (1) 

Definitions for the terms ‘‘allowable 

emissions,’’ ‘‘baseline actual 

emissions,’’ ‘‘net emissions increase,’’ 

‘‘major modification,’’ and ‘‘regulated 

NSR pollutant’’ that are not entirely 

consistent with EPA’s definitions in 40 

CFR 51.166; (2) a provision governing 

adjustment of PALs to incorporate 

requirements that become effective 

during the term of a PAL that is not 

entirely consistent with EPA’s 

requirements; and (3) the absence of 

provisions to ensure that approval of 

any construction or modification must 

not affect the responsibility of the owner 

or operator to comply with applicable 

portions of the control strategy. 

Finally, our limited disapproval of the 

nonattainment NSR program in Section 

12.3 is based on the following 

deficiencies: (1) Provisions governing 

offsets and calculation of emission 

reduction credits that do not ensure the 

integrity of offset calculations and that 

reference a separate rule that is not SIPapproved (Section 12.7) for important 

criteria governing these calculations; (2) 

definitions for the terms ‘‘net emissions 

increase,’’ ‘‘major modification,’’ and 

‘‘regulated NSR pollutant’’ that are not 

entirely consistent with EPA’s 

definitions in 40 CFR 51.165; (3) 

provisions governing interpollutant 

trades that do not satisfy EPA’s criteria 

for approval of such trades; (4) the 

absence of 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; and (5) the 

absence of provisions to ensure that 

approval of any construction or 

modification must not affect the 

responsibility of the owner or operator 

to comply with applicable portions of 

the control strategy. 

The intended effect of this limited 

approval and limited disapproval action 

is to update the applicable state 

implementation plan with current State 

rules for permitting of stationary 

sources,9 and to set the stage for 

remedying deficiencies in these 

permitting rules. With respect to those 

deficiencies that relate to the 

nonattainment NSR requirements of part 

D, title I of the Act, mandatory sanctions 

will apply to the Clark County 

nonattainment area under section 179 of 

the Clean Air Act unless Nevada 

submits, and EPA approves, SIP 

revisions correcting the deficiencies 

within 18 months of the effective date 

of this final rule. See 40 CFR 52.31. In 

addition, this limited disapproval action 

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64048 Federal Register / Vol. 77, No. 202 / Thursday, October 18, 2012 / Rules and Regulations 

triggers an obligation on EPA to 

promulgate a Federal Implementation 

Plan addressing the deficient SIP 

elements unless Nevada submits, and 

EPA approves, SIP revisions correcting 

the deficiencies within two years of the 

effective date of this final rule. We stand 

ready to work with Clark County to 

ensure that its upcoming rulemaking 

processes result in permit programs that 

fully satisfy CAA requirements. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12988, Regulatory 

Planning and Review 

The Office of Management and Budget 

(OMB) has exempted this regulatory 

action from Executive Order 128665, 

entitled ‘‘Regulatory Planning and 

Review.’’ 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. Burden is 

defined at 5 CFR 1320.3(b). 

C. Regulatory Reduction Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to conduct 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements unless the 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Small entities include small businesses, 

small not-for-profit enterprises, and 

small governmental jurisdictions. 

This rule will not have a significant 

impact on a substantial number of small 

entities because SIP approvals or 

disapprovals under section 110 of the 

Clean Air Act do not create any new 

requirements but simply approve or 

disapprove requirements that the State 

is already imposing. Therefore, because 

this limited approval/limited 

disapproval action does not create any 

new requirements, I certify that this 

action will not have a significant 

economic impact on a substantial 

number of small entities. Moreover, due 

to the nature of the Federal-State 

relationship under the Clean Air Act, 

preparation of flexibility analysis would 

constitute Federal inquiry into the 

economic reasonableness of State 

action. The Clean Air Act forbids EPA 

to base its actions concerning SIPs on 

such grounds. Union Electric Co., v. 

U.S. EPA, 427 U.S. 246, 255–66 (1976); 

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

D. Unfunded Mandates Reform Act 

Under section 202 of the Unfunded 

Mandates Reform Act of 1995 

(‘‘Unfunded Mandates Act’’), signed 

into law on March 22, 1995, EPA must 

prepare a budgetary impact statement to 

accompany any proposed or final rule 

that includes a Federal mandate that 

may result in estimated costs to State, 

local, or tribal governments in the 

aggregate; or to the private sector, of 

$100 million or more. Under section 

205, EPA must select the most costeffective and least burdensome 

alternative that achieves the objectives 

of the rule and is consistent with 

statutory requirements. Section 203 

requires EPA to establish a plan for 

informing and advising any small 

governments that may be significantly 

or uniquely impacted by the rule. 

EPA has determined that this limited 

approval/limited disapproval action 

does not include a Federal mandate that 

may result in estimated costs of $100 

million or more to either State, local, or 

tribal governments in the aggregate, or 

to the private sector. This Federal action 

takes a limited approval/limited 

disapproval action on pre-existing 

requirements under State or local law, 

and imposes no new requirements. 

Accordingly, no additional costs to 

State, local, or tribal governments, or to 

the private sector, result from this 

action. 

E. Executive Order 13132, Federalism 

Federalism (64 FR 43255, August 10, 

1999) revokes and replaces Executive 

Orders 12612 (Federalism) and 12875 

(Enhancing the Intergovernmental 

Partnership). Executive Order 13132 

requires EPA to develop an accountable 

process to ensure ‘‘meaningful and 

timely input by State and local officials 

in the development of regulatory 

policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ Under 

Executive Order 13132, EPA may not 

issue a regulation that has federalism 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, or EPA consults with 

State and local officials early in the 

process of developing the proposed 

regulation. EPA also may not issue a 

regulation that has federalism 

implications and that preempts State 

law unless the Agency consults with 

State and local officials early in the 

process of developing the proposed 

regulation. 

This rule will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132, because it 

merely takes a limited approval/limited 

disapproval action on State rules 

implementing a Federal standard, and 

does not alter the relationship or the 

distribution of power and 

responsibilities established in the Clean 

Air Act. Thus, the requirements of 

section 6 of the Executive Order do not 

apply to this rule. 

F. Executive Order 13175, Coordination 

With Indian Tribal Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This rule does not have 

tribal implications, as specified in 

Executive Order 13175. It will not have 

substantial direct effects on tribal 

governments, on the relationship 

between the Federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian tribes. 

Thus, Executive Order 13175 does not 

apply to this rule. 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

(62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This rule is not subject to 

Executive Order 13045, because it takes 

a limited approval/limited disapproval 

action on State rules implementing a 

Federal standard. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355, May 22, 2001) because it is 

not a significant regulatory action under 

Executive Order 12866. 

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Federal Register / Vol. 77, No. 202 / Thursday, October 18, 2012 / Rules and Regulations 64049 

I. National Technology Transfer and 

Advancement Act 

Section 12 of the National Technology 

Transfer and Advancement Act 

(NTTAA) of 1995 requires Federal 

agencies to evaluate existing technical 

standards when developing a new 

regulation. To comply with NTTAA, 

EPA must consider and use ‘‘voluntary 

consensus standards’’ (VCS) if available 

and applicable when developing 

programs and policies unless doing so 

would be inconsistent with applicable 

law or otherwise impractical. 

EPA believes that VCS are 

inapplicable to this action. Today’s 

action does not require the public to 

perform activities conducive to the use 

of VCS. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Population 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA lacks the discretionary authority 

to address environmental justice in this 

rulemaking. In reviewing SIP 

submissions, EPA’s role is to approve or 

disapprove state choices, based on the 

criteria of the Clean Air Act. 

Accordingly, this action merely takes a 

limited approval/limited disapproval 

action on certain State requirements for 

inclusion into the SIP under section 110 

of the Clean Air Act and will not in-andof itself create any new requirements. 

Accordingly, it does not provide EPA 

with the discretionary authority to 

address, as appropriate, 

disproportionate human health or 

environmental effects, using practicable 

and legally permissible methods, under 

Executive Order 12898. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

L. Petitions for Judicial Review 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by December 17, 

2012. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this rule for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements (see section 

307(b)(2)). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Ozone, Volatile organic compounds, 

Nitrogen dioxide, Sulfur oxides, 

Particulate matter, Lead, Reporting and 

recordkeeping requirements. 

Dated: September 28, 2012. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

40 CFR Part 52 is amended as follows: 

PART 52—[APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart DD—Nevada 

■ 2. In § 52.1470 in paragraph (c), Table 

3 is amended by: 

■ a. Revising the entry for ‘‘Section 0.’’ 

■ b. Adding in numerical order entries 

for ‘‘Section 12.0,’’ ‘‘Section 12.1,’’ 

‘‘Section 12.2,’’ ‘‘Section 12.3,’’ and 

‘‘Section 12.4.’’ 

■ c. Removing the entries for ‘‘Section 1 

(‘‘Definitions’’): Subsection 1.3,’’ 

‘‘Section 1 (‘‘Definitions’’): Subsection 

1.50,’’ ‘‘Section 1 (‘‘Definitions’’): 

Subsection 1.78,’’ ‘‘Section 1 

(‘‘Definitions’’): [unnumbered],’’ 

‘‘Section 1 (‘‘Definitions’’): Subsection 

1.85,’’ ‘‘Section 1 (‘‘Definitions’’): 

Subsection 1.89,’’ ‘‘Section 12 

(excluding subsections 12.2.18 and 

12.2.20),’’ ‘‘Section 16: Subsections 

16.1–16.9,’’ ‘‘Section 58’’ and ‘‘Section 

59 [excluding subsection 59.2 (‘‘Local 

Offset Requirements’’]’’. 

§ 52.1470 Identification of plan. 

* * * * * 

(c) * * * 

TABLE 3—EPA-APPROVED CLARK COUNTY REGULATIONS

County citation Title/subject 

County 

effective 

date 

EPA approval date Additional explanation 

Section 0 .................... Definitions ............................................. 5/18/10 [Insert Federal Register page number 

where the document begins], 10/18/ 

12.

Submitted on 5/22/12. 

* * * * * * * 

Section 12.0 ............... Applicability, General Requirements 

and Transition Procedures.

11/3/09 [Insert Federal Register page number 

where the document begins], 10/18/ 

12.

Submitted on 2/11/10. 

Section 12.1 ............... Permit Requirements for Minor 

Sources.

11/3/09 [Insert Federal Register page number 

where the document begins], 10/18/ 

12.

Submitted on 2/11/10. 

Section 12.2 ............... Permit Requirements for Major 

Sources in Attainment Areas (Prevention of Significant Deterioration).

3/6/12 [Insert Federal Register page number 

where the document begins], 10/18/ 

12.

5/22/12. 

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64050 Federal Register / Vol. 77, No. 202 / Thursday, October 18, 2012 / Rules and Regulations 

TABLE 3—EPA-APPROVED CLARK COUNTY REGULATIONS—Continued 

County citation Title/subject 

County 

effective 

date 

EPA approval date Additional explanation 

Section 12.3 ............... Permit Requirements for Major 

Sources in Nonattainment Areas.

5/18/10 [Insert Federal Register page number 

where the document begins], 10/18/ 

12.

Submitted on 9/01/10. 

Section 12.4 ............... Authority to Construct Application and 

Permit Requirements For Part 70 

Sources.

5/18/10 [Insert Federal Register page number 

where the document begins], 10/18/ 

12.

Submitted on 9/01/10. 

* * * * * * * 

* * * * * 

[FR Doc. 2012–25545 Filed 10–17–12; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Parts 365, 371, and 375 

[Docket No. FMCSA–2012–0322] 

FMCSA Policy on the Suspension of 

Operating Authority for Hostage Load 

Violations 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

ACTION: Notice of enforcement policy. 

SUMMARY: FMCSA provides notice of the 

Agency’s new policy concerning 

enforcement of its household goods 

(HHG) motor carrier and broker 

regulations. FMCSA may take 

enforcement action when a HHG motor 

carrier or broker knowingly and 

willfully fails, in violation of a contract, 

to deliver or unload at the destination 

a shipment of HHG for which charges 

have been estimated and for which 

payment has been tendered. A motor 

carrier or broker found holding a HHG 

shipment hostage may be subject to 

suspension of registration for a period of 

not less than 12 months to not more 

than 36 months. 

DATES: This decision is effective October 

18, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Brodie Mack, Jr., Commercial 

Enforcement and Investigations 

Division, Federal Motor Carrier Safety 

Administration, 1200 New Jersey 

Avenue SE., Washington, DC 20590, 

(202) 366–8045; email 

brodie.mack@dot.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

The U.S. Department of 

Transportation (DOT) assumed 

responsibility for regulating the HHG 

industry in 1996 from the Interstate 

Commerce Commission (ICC). Congress 

terminated the ICC in the ICC 

Termination Act of 1995 (Pub. L. 104– 

88, 109 Stat. 803). Consequently, DOT 

inherited the responsibility of handling 

consumer complaints regarding 

deceptive business practices and 

hostage shipments. In 2000, FMCSA 

was delegated the responsibility for 

enforcement of HHG consumer 

protection in the Motor Carrier Safety 

Improvement Act of 1999 (MCSIA), 

Public Law 106–159, 113 Stat. 1748. 

However, FMCSA lacked the authority 

to fully address brokers and motor 

carriers engaged in the practice of 

holding HHG shipments hostage in 

violation of a contract. Congress 

responded by including the ‘‘Household 

Goods Movers Oversight Enforcement 

and Reform Act of 2005’’ in the Safe, 

Accountable, Flexible, Efficient 

Transportation Equity Act: A Legacy for 

Users (SAFETEA–LU). In SAFETEA– 

LU, Congress specifically addressed 

(codified at 49 U.S.C. 14915) the 

problem of persons, including, but not 

limited to, brokers and motor carriers, 

who hold HHG shipments hostage. The 

statute defines a hostage shipment, 

establishes civil and criminal penalties, 

and permits the suspension of the 

operating authority registration of a 

motor carrier or broker from 12 to 36 

months when it holds a shipment 

hostage. 

Policy 

Pursuant to 49 U.S.C. 14915, any 

person, including a motor carrier or 

broker, that holds a HHG shipment 

hostage is subject to a $10,000 civil 

penalty for each violation. Each day the 

goods are held hostage may constitute a 

separate violation. In addition with the 

publication of this policy statement 

FMCSA may suspend a broker or motor 

carrier’s registration for a period of not 

less than 12 months or more than 36 

months. The suspension of a carrier’s or 

broker’s registration extends to and 

includes any carrier or broker having 

the same ownership or operational 

control as the suspended carrier or 

broker. 

FMCSA may suspend a carrier’s or 

broker’s registration upon a 

determination by FMCSA that the 

carrier or broker knowingly and 

willfully failed, in violation of a 

contract, to deliver or unload at the 

destination of a shipment of HHG for 

which charges have been estimated and 

for which payment has been tendered. 

Pursuant to 49 U.S.C. 13707(b)(3)(A), 

payment is tendered when a shipper 

pays: (1) 100 percent of the charges 

contained in a binding estimate 

provided by the carrier; (2) not more 

than 110 percent of the charges 

contained in a nonbinding estimate 

provided by the carrier; (3) or in the 

case of a partial delivery of the 

shipment, the prorated percentage of the 

charges. 

FMCSA will take action to suspend a 

carrier’s or broker’s registration for 

hostage load violations in accordance 

with the procedures in 49 U.S.C. 13905. 

FMCSA may determine that a hostage 

load violation has occurred based on the 

results of an investigation, an Agency 

determination as stated in a final order, 

or admission by the motor carrier or 

broker. FMCSA initiates a proceeding to 

suspend the carrier’s or broker’s 

registration by issuing an order to the 

carrier or broker to show good cause 

why the registration should not be 

suspended in accordance with 49 U.S.C. 

13905. The order provides notice of the 

alleged violation, explains how to 

submit a written response with 

supporting documentation, and informs 

the registered entity that failure to 

respond and demonstrate good cause 

will result in suspension of its 

registration. 

The Agency Official who issued the 

order reviews the registered entity’s 

response. After reviewing the response, 

the Agency Official issues a written 

decision and may take one of three 

actions. First, he or she may enter an 

order suspending the entity’s 

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