The Regional Administrator for EPA Region 9, Jared Blumenfeld, signed the following notice on September 28, 

2012, and EPA is submitting it for publication in the Federal Register (FR). We have taken steps to ensure the 

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

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

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

No. EPA-R09-OAR-2012-0566.

Billing Code: 6560-50-P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0566; FRL-____-_]

Limited Approval and Disapproval of Air Quality Implementation 

Plans; Nevada; Clark County; Stationary Source Permits

AGENCY: Environmental Protection Agency (EPA).

ACTION: 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 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

2

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.

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

from the date of publication in the Federal Register].

DOCKET: EPA has established docket number EPA-R09-OAR-2012-0566

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 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

3

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 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 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

4

“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 

Number Section Title Adopted Submitted

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

12.0

Applicability, General 

Requirements and Transition 

Procedures 11/3/09 2/11/10

12.1 Permit Requirements for Minor 

Sources 11/3/09 2/11/10

12.2

Permit Requirements for Major 

Sources in Attainment Areas 

(Prevention of Significant 

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

12.3 Permit Requirements for Major 

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

12.4

Authority to Construct 

Application and Permit 

Requirements For Part 70 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 Section Title Fed. Reg. 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

5

Number 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); 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

6

(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 

 1 Although 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.
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have taken steps to ensure the accuracy of this version, but it is not the official version.

7

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 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 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

8

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 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

9

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 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

10

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 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

11

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 

 2 The preamble to EPA’s PM2.5 NSR Implementation Rule provided that States with 

SIP-approved 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).
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have taken steps to ensure the accuracy of this version, but it is not the official version.

12

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 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

13

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, 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 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

14

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 federally-enforceable permit conditions 

and state-only enforceable permit conditions, as explained 
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further below.

Under the CAA and EPA’s implementing regulations, all 

limitations and conditions in a permit issued pursuant to SIPapproved 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, 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

16

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 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

17

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 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

18

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 SIP-approved requirements in Section 12.1. Given 

that all conditions of a permit issued pursuant to a SIPapproved 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 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

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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 

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 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

20

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., nonEUSGUs) 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 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

21

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.
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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 “nonEUSGU”), 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 
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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 period3 exceeds an emission 

limitation that applies at the time the project under review

 3 For 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).
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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 [nonEUSGUs] 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 contemporaneous emissions change has 

occurred, you should use the 10-year look back period 
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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 
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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

 4 Subsection 12.2.2(c)(2)(D) does not contain this language and instead 
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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 nonEUSGUs 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 

 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.
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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 nonEUSGUs 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 
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(“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 
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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 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 
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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 
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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 

 5 These 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). 
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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 
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(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 
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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 
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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. 

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 

 6 The 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 . . . .”) 
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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 
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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 actualto-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 

 7 We assume that Clark County intended here to reference the definition of 

“projected actual emissions” in subsection 12.2.2(nn) of Section 12.2.
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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 

 8 EPA purposefully did not extend the actual-to-projected-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-to-potential methodology under step two of the analysis.” 

2011 NEI Letter at 3.
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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. 
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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 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

42

has adequate, equivalent-performing regulatory provisions.” NDEP 

stated that EPA has not provided specific guidance on the NSR 

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 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

43

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 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

44

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 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

45

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 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

46

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 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

47

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 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 

 9 Final approval of the rules in table 1 supersedes the rules listed in table 

2, above, in the existing Nevada SIP. 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

48

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.
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have taken steps to ensure the accuracy of this version, but it is not the official version.

49

This rule will not have a significant impact on a 

substantial number of small entities because SIP approvals or 

disapprovals under section 110 of the Clean Air Act do not 

create any new requirements but simply approve or disapprove 

requirements that the State is already imposing. Therefore, 

because this limited approval/limited disapproval action does 

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

not have a significant economic impact on a substantial number 

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

flexibility analysis would constitute Federal inquiry into the 

economic reasonableness of State action. The Clean Air Act 

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

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

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

D. Unfunded Mandates Reform Act

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 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

50

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

cost-effective and least burdensome alternative that achieves 

the objectives of the rule and is consistent with statutory 

requirements. Section 203 requires EPA to establish a plan for 

informing and advising any small governments that may be 

significantly or uniquely impacted by the rule.

EPA has determined that this limited approval/limited 

disapproval action does not include a Federal mandate that may 

result in estimated costs of $100 million or more to either 

State, local, or tribal governments in the aggregate, or to the 

private sector. This Federal action takes a limited 

approval/limited disapproval action on pre-existing requirements 

under State or local law, and imposes no new requirements. 

Accordingly, no additional costs to State, local, or tribal 

governments, or to the private sector, result from this action.

E. Executive Order 13132, Federalism

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 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

51

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 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

52

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

distribution of power and responsibilities established in the 

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

Executive Order do not apply to this rule.

F. Executive Order 13175, Coordination with Indian Tribal 

Governments

Executive Order 13175, entitled “Consultation and 

Coordination with Indian Tribal Governments” (65 FR 67249, 

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

process to ensure “meaningful and timely input by tribal 

officials in the development of regulatory policies that have 

tribal implications.” This proposed rule does not have tribal 

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

have substantial direct effects on tribal governments, on the 

relationship between the Federal government and Indian tribes, 

or on the distribution of power and responsibilities between the 

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
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have taken steps to ensure the accuracy of this version, but it is not the official version.

53

concern health or safety risks, such that the analysis required 

under section 5-501 of the Executive Order has the potential to 

influence the regulation. This rule is not subject to Executive 

Order 13045, because it takes a limited approval/limited 

disapproval action on State rules implementing a Federal 

standard.

H. Executive Order 13211, Actions that Significantly Affect 

Energy Supply, Distribution, or Use 

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

Concerning Regulations That Significantly Affect Energy Supply, 

Distribution, or Use” (66 FR 28355, May 22, 2001) because it is 

not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and 

Advancement Act (NTTAA) of 1995 requires Federal agencies to 

evaluate existing technical standards when developing a new 

regulation. To comply with NTTAA, EPA must consider and use 

“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.
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have taken steps to ensure the accuracy of this version, but it is not the official version.

54

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 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

55

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

does not provide EPA with the discretionary authority to 

address, as appropriate, disproportionate human health or 

environmental effects, using practicable and legally permissible 

methods, under Executive Order 12898.

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. section 801 et seq., 

as added by the Small Business Regulatory Enforcement Fairness 

Act of 1996, generally provides that before a rule may take 

effect, the agency promulgating the rule must submit a rule 

report, which includes a copy of the rule, to each House of the 

Congress and to the Comptroller General of the United States.

EPA will submit a report containing this rule and other required 

information to the U.S. Senate, the U.S. House of 

Representatives, and the Comptroller General of the United 

States prior to publication of the rule in the Federal Register.

A major rule cannot take effect until 60 days after it is 

published in the Federal Register. This action is not a “major 

rule” as defined by 5 U.S.C. section 804(2).

L. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for 

judicial review of this action must be filed in the United 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

56

States Court of Appeals for the appropriate circuit by [Insert 

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

Federal Register]. Filing a petition for reconsideration by the 

Administrator of this final rule does not affect the finality of 

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

the time within which a petition for judicial review may be 

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

action. This action may not be challenged later in proceedings 

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

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control,

Incorporation by reference, Intergovernmental relations, Ozone, 

Volatile organic compounds, Nitrogen dioxide, Sulfur oxides, 

Particulate matter, Lead, Reporting and recordkeeping 

requirements,. 

___September 28, 2012 /signed/ _______

Dated: Jared Blumenfeld

Regional Administrator,

Region IX.
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have taken steps to ensure the accuracy of this version, but it is not the official version.

57

Therefore, 40 CFR Chapter I 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 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.

* * * * *
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have taken steps to ensure the accuracy of this version, but it is not the official version.

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(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 and 

insert date 

of FR

publication 

date]

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 and 

insert date 

of FR

publication 

date]

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 and 

insert date 

of FR

publication 

date]

Submitted 

on 2/11/10.

Section 

12.2

Permit 

Requirements 

for Major 

3/6/12 [Insert 

Federal

Register page 

5/22/12
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have taken steps to ensure the accuracy of this version, but it is not the official version.

59

Sources in 

Attainment 

Areas 

(Prevention of 

Significant 

Deterioration)

number where 

the document 

begins and 

insert date 

of FR

publication 

date]

Section 

12.3

Permit 

Requirements 

for Major 

Sources in 

Nonattainment 

Areas

5/18/10 [Insert 

Federal

Register page 

number where 

the document 

begins and 

insert date 

of FR

publication 

date]

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 and 

insert date 

of FR

publication 

date]

Submitted 

on 9/01/10.

* * * * * * *

* * * * *