UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION IX AIR DIVISION

Technical Support Document 

for 

EPA’s Proposed Rulemaking 

for the 

Nevada State Implementation Plan 

Stationary Source Permitting Rules 

Prepared by: Laura Yannayon, Jeff Wehling 

March 21, 2007 
TABLE OF CONTENTS Page

I. SUMMARY OF RECOMMENDATIONS 1 

II. BACKGROUND 6 

III. EPA EVALUATION CRITERIA 10 

IV. DISCUSSION OF SUBMITTED RULES 10 

V. EPA EVALUATION OF SUBMITTED RULES 39 

A. COMPLIANCE WITH MINIMUM REQUIREMENTS ESTABLISHED 

 IN CAA SECTIONS 110(a)(2), 110(l), AND 193 40 

B. COMPLIANCE WITH MINIMUM REQUIREMENTS ESTABLISHED 

FOR STATIONARY SOURCE PERMIT PROGRAMS IN 40 CFR 

PART 51 (“REQUIREMENTS FOR PREPARATION, 

ADOPTION,AND SUBMITTAL OF IMPLEMENTATION PLANS”), 

SUBPART I (“REVIEW OF NEW SOURCES AND 

MODIFICATIONS”), EXCLUDING 40 CFR 51.165 AND 

51.166 44 

C. OTHER ISSUES 53 

VI. EVALUATION OF STATE REQUEST TO RESCIND CERTAIN 

 PERMIT-RELATED RULES AND STATUTES 54 

VII. ATTACHMENTS 60 

A. SUBMITTED NDEP RULES 

B. SIP NDEP RULES 
1

I. SUMMARY OF RECOMMENDATIONS 

On January 12, 2006, the Nevada Division of Environmental 

Protection (NDEP), the Governor’s designee under the Federal 

Clean Air Act (“Act” or CAA,) for submittals of revisions to the 

Nevada State Implementation Plan (SIP) submitted new and amended 

rules related to stationary source permitting for approval as 

part of the SIP. Some of these rules were amended by the State 

Environmental Commission on September 6, 2006 and resubmitted to 

EPA (as amended) on December 8, 2006. These rules represent a 

comprehensive update to the State’s stationary source permitting 

program and are intended to satisfy all of the requirements 

under CAA section 110(a)(2)(C) of the Clean Air Act (CAA or 

“Act”), excluding the requirements for major sources and major 

modifications under parts C and D of title I of the Act. The 

State also requested rescission of certain permit-related rules 

in the existing SIP. 

This section of the Technical Support Document (TSD) 

summarizes the recommendations made herein by referring to three 

basic groups of rules: “submitted rules,” “rules for which 

rescission is requested,” and “superseded rules.” The set of 

“submitted rules” is further divided into those that are 

“separable” from the other submitted rules, which are considered 

in their entirety and not individually. By “separable,” EPA 

means that the action it anticipates taking will not result in 

the approved rule(s) being more stringent than the State 

anticipated. See EPA memorandum from John Calcagni, Office of 

Air Quality Planning and Standards, entitled “Processing of 

State Implementation Plan (SIP) Submittals,” dated July 9, 1992. 

SUBMITTED RULES 

Separable rules (7) 

Three are recommended for approval, and four are 

recommended for full disapproval. Recommendations are shown in 

CAPITALIZED, BOLD type.

Definitions (4) – 

NAC 445B.196 – “Toxic regulated air pollutant” defined. 

FULL DISAPPROVAL.

NAC 445B.021 – “Area source” defined. FULL DISAPPROVAL.

NAC 445B.028 – “Best available control technology” defined. 

FULL DISAPPROVAL.

NAC 445B.178 – “Source reduction” defined. FULL DISAPPROVAL.
2

General Provisions (3) – 

NAC 445B.22083 – Construction, major modification or relocation 

of plants to generate electricity using steam produce by 

burning of fossil fuels. APPROVAL. 

NAC 445B.250 - Notification of planned construction or 

reconstruction. APPROVAL.

NAC 445B.252 - Testing and sampling. APPROVAL.

Non-separable Rules (87) 

The program set forth in the following rules is considered 

in its entirety and is recommended for FULL DISAPPROVAL. 

Definitions (42) – 

NAC 445B.003 – “Adjacent properties” defined. 

NAC 445B.0035 – “Administrative revision to a Class I operating 

permit” defined. 

NAC 445B.007 – “Affected state” defined. 

NAC 445B.013 – “Allowable emissions” defined. 

NAC 445B.014 – “Alteration” defined. 

NAC 445B.016 – “Alternative operating scenarios” defined. 

NAC 445B.019 – “Applicable requirements” defined. 

NAC 445B.035 – “Class I-B application” defined. 

NAC 445B.036 – “Class I source” defined. 

NAC 445B.037 – “Class II source” defined. 

NAC 445B.038 – “Class III source” defined. 

NAC 445B.044 – “Construction” defined. 

NAC 445B.046 – “Contiguous property” defined. 

Sec. 2 of Regulation R096-05 – “Dispersion technique” defined. 

Sec. 3 of Regulation R096-05 – “Excessive concentration” 

defined. 

NAC 445B.066 – “Existing stationary source” defined. 

NAC 445B.068 – “Facility” defined. 

NAC 445B.069 – “Federally enforceable” defined. 

NAC 445B.070 – “Federally enforceable emissions cap” defined. 

NAC 445B.082 – “General permit” defined. 

Sec. 4 of Regulation R096-05 – “Good engineering practice stack 

height” defined. 

NAC 445B.087 – “Increment” defined. 

NAC 445B.093 – “Major modification” defined. 

NAC 445B.094 – “Major source” defined. 

NAC 445B.0945 – “Major stationary source” defined. 

NAC 445B.099 – “Modification” defined. 

NAC 445B.104 – “Motor vehicle” defined. 

Sec. 5 of Regulation R096-05 – “Nearby” defined. 

NAC 445B.108 – “New stationary source” defined. 

NAC 445B.117 – “Offset” defined. 

NAC 445B.123 – “Operating permit” defined. 
3

NAC 445B.124 – “Operating permit to construct” defined. 

NAC 445B.1345 – “Plantwide applicability limitation” defined. 

NAC 445B.138 – “Potential to emit” defined. 

NAC 445B.142 – “Prevention of significant deterioration of air 

quality” defined. 

NAC 445B.147 – “Program” defined. 

NAC 445B.154 – “Renewal of an operating permit” defined. 

NAC 445B.156 – “Responsible official” defined. 

NAC 445B.157 – “Revision of an operating permit” defined. 

NAC 445B.179 – “Special mobile equipment” defined. 

NAC 445B.187 – “Stationary source” defined. 

NAC 445B.194 – “Temporary source” defined. 

Operating Permits Generally (18) - 

NAC 445B.287 – Operating permits: general requirements; 

exception; restriction on transfers. 

NAC 445B.288 – Operating permits: exemptions from requirements; 

insignificant activities. 

NAC 445B.295 – Application: General requirements. 

NAC 445B.297 – Application: submission of application and 

supplementary or corrected information. 

NAC 445B.298 – Application: official date of submittal. 

NAC 445B.305 – Operating permits: imposition of more stringent 

standards for emissions. 

NAC 445B.308 – Prerequisites and conditions for issuance of 

operating permits: environmental evaluation; compliance with 

control strategy; exemption from environmental evaluation. 

NAC 445B.310 – Environmental evaluation: applicable sources. 

NAC 445B.311 – Environmental evaluation: required information. 

NAC 445B.313 – Method for determining heat input: class I 

sources. 

NAC 445B.3135 – Method for determining heat input: class II 

sources. 

NAC 445B.314 – Method for determining heat input: class III 

sources. 

NAC 445B.315 – Contents of operating permits: exception for 

operating permits to construct; required conditions. 

NAC 445B.318 – Operating permits: separate permit required for 

each source; form of application; issuance or denial of permit; 

posting of permit. 

NAC 445B.319 – Operating permits: administrative amendment. 

NAC 445B.325 – Operating permits: Termination, reopening and 

revision, revision, or revocation and reissuance. 

NAC 445B.326 – Operating permits: assertion of emergency as 

affirmative defense to action for noncompliance. 

NAC 445B.331 – Request for change of location of emission unit. 
4

Class I Operating Permits (16) - 

NAC 445B.3361 – General requirements. 

NAC 445B.3363 – Operating permit to construct: application. 

NAC 445B.33637 – Operating permit to construct for approval of 

plantwide applicability limitation: Application. 

NAC 445B.3364 – Operating permit to construct: review of 

application and determination of completeness by director; 

notice. 

NAC 445B.3365 – Operating permit to construct: required 

conditions. 

NAC 445B.33656 – Operating permit to construct for approval of 

plantwide applicability limitation: required conditions and 

information. 

NAC 445B.3366 – Operating permit to construct: expiration; 

extension. 

NAC 445B.3368 – Application: additional requirements; exception. 

NAC 445B.3375 – Class I-B application: filing requirement. 

NAC 445B.3395 – Review of application and determination of 

completeness by director; notice; expiration of permit. 

NAC 445B.340 – Prerequisites to issuance, revision or renewal of 

permit. 

NAC 445B.342 – Revision of permit: exception when making certain 

changes; notification of changes. 

NAC 445B.3425 – Minor revision of permit. 

NAC 445B.344 – Significant revision of permit. 

NAC 445B.3441 – Administrative revision of permit to incorporate 

conditions of certain permits to construct. 

NAC 445B.3443 – Renewal of permit. 

Class II Operating Permits (6) - 

NAC 445B.3453 – Application: general requirements. 

NAC 445B.3457 – Application: determination of completeness by 

director. 

NAC 445B.346 – Required contents of permit. 

NAC 445B.3465 – Application for revision. 

NAC 445B.3473 – Renewal of permit. 

NAC 445B.3477 – Class II general permit. 

Class III Operating Permits (5) – 

NAC 445B.3485 – Application: general requirements. 

NAC 445B.3487 – Application: determination of completeness by 

director. 

NAC 445B.3489 – Required content of permits. 

NAC 445B.3493 – Application for revision. 

NAC 445B.3497 – Renewal of permits. 
5

RULES FOR WHICH RESCISSION IS REQUESTED (7) 

Two are recommended for approval, three are recommended for 

disapproval, and two are recommended for deferral. 

Recommendations are shown in CAPITALIZED, BOLD type. 

Rule 25 of General Order No. 3 DEFERRAL. 

Article 1.60 – Effective date DISAPPROVE. 

Article 1.72 – Existing facility DISAPPROVE. 

Article 13.1.3(3) – Minor source BACT APPROVAL. 

NAC 445.706(2) – Appl. date: payment of fees APPROVAL. 

NAC 445.715 - Operation permits: revocation DISAPPROVE.

NRS 704.820 to 704.900 DEFERRAL.

SUPERSEDED RULES 

If the recommendations above become final, then the 

following SIP rules will be superseded by the corresponding 

rules listed in the second column. 

Existing SIP Submitted SIP

NAC 445B.22083, approved at 69 FR 54006. NAC 445B.22083 

Article 2.16.1, approved at 43 FR 36932. NAC 445B.250 

NAC 445.682, approved at 49 FR 11626. NAC 445B.252 

If the stationary source permitting program listed above 

that is recommended for disapproval were to be amended and then 

subsequently approved, the following additional rules would be 

superseded in the SIP.

Definitions - 

Article 1.42 – Construction. 

Article 1.43 – Contiguous property. 

Article 1.104 – Major stationary source. 

Article 1.109 – Modification. 

Article 1.111 – Motor vehicle. 

Article 1.182 – Special mobile equipment. 

Article 1.187 - Stationary source. 

NAC 445.559 – Operating permit. 

Registration Certificates and Operating Permits - 

NAC 445.704 Registration certificates and operating permits 

required. 

NAC 445.705 Exemptions. 

NAC 445.706 Application date; payment of fees. 

NAC 445.707 Registration certificates: prerequisite; 

application; fee; issuance, denial; expiration. 
6

NAC 445.712 Operating permits: prerequisite; application; fee; 

issuance, denial; posting. 

NAC 445.713 Operating permits: renewal. 

NAC 445.714 Operating permits: replacement of lost or damaged 

permits. 

NAC 445.715 Operating permits: revocation. 

NAC 445.716 Operating permits: change of location. 

Point Sources -

Article 13: 

13.1 (“General Provisions for the Review of New Sources”): 

13.1.1, 13.1.2, 13.1.3(1), 13.1.4, 13.1.5, 13.1.6, 13.1.7; 

13.2 [applicability thresholds for environmental evaluations 

(EEs)]: 13.2.3, and 13.2.4; 

13.3 [content requirements for EEs]: 13.3.1, 13.3.1.1, 

13.3.1.2.1

II. BACKGROUND

Outside of Clark and Washoe counties, the NDEP has primary 

responsibility to regulate air pollution from stationary and 

area sources in the State of Nevada. NDEP also has permitting 

responsibility on a State-wide basis for certain types of power 

plants. This technical support document (TSD) addresses the 

rules comprising the stationary source permitting program 

(excluding preconstruction review and permitting of new major 

sources or major modifications under parts C or D of the title I 

of the Clean Air Act) within the NDEP portion of the SIP. 

Pursuant to the Clean Air Amendments of 1970, EPA 

promulgated national ambient air quality standards (NAAQS) for 

certain pervasive air pollutants, including particulate matter 

and sulfur dioxide. The Clean Air Act (CAA or “Act”), as amended 

in 1970, required each State to adopt and submit a plan which 

provides for implementation, maintenance, and enforcement of the 

NAAQS within such State. These plans are referred to as State 

implementation plans, or SIPs. 

 

1

 NDEP’s January 12, 2006 SIP submittal retains certain nonattainment NSR 

provisions including the definition of the term, “lowest achievable emission 

rate” (LAER), and NAQR article 13.1.3(2) in the SIP. Article 13.1.3(2) 

establishes the LAER requirement, and LAER is defined to apply to applicants 

who are required to submit EEs, and such applicants are identified by 

emissions-based threshold values in article 13.2, 13.2.1, and 13.2.2, 

submitted on July 24, 1979 and approved on June 23, 1982 (47 FR 27070). Thus, 

NAQR article 13.2, 13.2.1, and 13.2.2 must be retained in the SIP to properly 

interpret and apply NAQR article 13.1.3(2).
7

The Governor of Nevada submitted the original Nevada SIP to 

EPA in January 1972. EPA approved certain portions of the 

original SIP and disapproved other portions under CAA section 

110(a). See 37 FR 10842 (May 31, 1972). For some of the 

disapproved portions of the original SIP, EPA promulgated 

substitute provisions, referred to as Federal implementation 

plan (FIP) provisions, under CAA section 110(c). See, e.g., 

EPA’s final rule at 38 FR 7270 (February 25, 1974) in which EPA 

established provisions for review of new or modified indirect 

sources. This original SIP included various rules, codified as 

articles within the Nevada Air Quality Regulations (NAQR), and 

various statutory provisions codified in title 40, chapter 445 

of the Nevada Revised Statutes (NRS). In the early 1980’s, the 

State of Nevada reorganized and re-codified its air quality 

rules as sections within chapter 445 of the Nevada 

Administrative Code (NAC). Today, the State of Nevada codifies 

its air quality regulations in chapter 445B of the NAC and 

codifies air quality statutes in chapter 445B of title 40 of the 

NRS. 

The State of Nevada adopted and submitted many revisions to 

the original set of regulations and statutes in the SIP, some of 

which EPA approved on February 6, 1975 at 40 FR 5511; on March 

26, 1975 at 40 FR 13306; on January 9, 1978 at 43 FR 1341; on 

January 24, 1978 at 43 FR 3278; on August 21, 1978 at 43 FR 

36932; on July 10, 1980 at 45 FR 46384; on April 14, 1981 at 46 

FR 21758; on August 27, 1981 at 46 FR 43141; on March 8, 1982 at 

47 FR 9833; on April 13, 1982 at 47 FR 15790; on June 18, 1982 

at 47 FR 26386; on June 23, 1982 at 47 FR 27070; on March 27, 

1984 at 49 FR 11626. Since 1984, EPA has approved very few 

revisions to Nevada’s SIP despite numerous changes that have 

been adopted locally. As a result, the version of the rules 

enforceable by NDEP is often quite different from the SIP 

version enforceable by EPA. 

 On February 16, 2005, NDEP submitted a large revision to 

the applicable Nevada SIP. The February 16, 2005 SIP submittal 

includes new and amended statutes and rules as well as requests 

for rescission of certain rules in the existing SIP. The 

February 16, 2005 SIP submittal also contains documentation of 

public participation (i.e., notice and public hearing) and 

adoption for all of the submitted rules through the hearing on 

November 30, 2004 held by the State Environmental Commission. 

 On January 12, 2006, NDEP submitted an amended version of 

the February 16, 2005 SIP submittal. The January 12, 2006 SIP 

submittal contains updated regulatory materials including new 
8

and amended rules adopted by the State Environmental Commission 

on October 4, 2005 but otherwise contains the same materials as 

the earlier submittal with the exception of the documentation of 

public participation. With respect to documentation of public 

participation, the January 12, 2006 SIP submittal includes 

documentation for rule amendments adopted by the State 

Environmental Commission on October 4, 2005 but does not include 

a re-submittal of the public participation documentation 

included in the earlier submittal. Therefore, the January 12, 

2006 SIP submittal supersedes the earlier SIP revision submittal 

dated February 16, 2005 for all purposes except for the 

documentation of public participation for adoption dates from 

November 30, 2004 and earlier. 

 On December 8, 2006, NDEP submitted a supplemental SIP 

revision that includes two regulations adopted by the State 

Environmental Commission on September 6, 2006 and related public 

participation documentation. These regulations include R139-06 

and R151-06. In R139-06, the commission repealed all of the 

provisions in the submitted rules that establish definitions or 

requirements related to designation of clean units and pollution 

control projects. The commission repealed these provisions in 

the wake of a decision by the D.C. Circuit Court of Appeals 

vacating those portions of EPA’s new source review rules that 

exempt clean units and pollution control projects from certain 

requirements that would otherwise apply as contrary to the Clean 

Air Act. See New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005). 

 Specifically, in R139-06, the commission repealed the 

following rules that had been included in the January 12, 2006 

SIP submittal: NAC 445B.041, 445B.136, 445B.33633, 445B.33635, 

445B.33653; and amended the following rules also previously 

submitted: NAC 445B.295, 445B.308, 445B.310, 445B.3361, 

445B.3363, 445B.3364, 445B.3365, 445B.33656, 445B.3366, 

445B.3375, and 445B.3441. We consider these repealed or amended 

rules to supersede the versions of the corresponding rules 

submitted on January 12, 2006.2

 

 

2

 Some of the rules resubmitted by NDEP (as amended) on December 8, 2006 

include subsections that NDEP had indicated in its January 12, 2006 that it 

was excluding from EPA review. We interpret NDEP’s December 8, 2006 submittal 

as superseding those specific subsections previously submitted for EPA action 

but not affecting the status of subsections previously excluded. In other 

words, if a given subsection of a rule was excluded from review in the 

January 12, 2006 SIP submittal, then we are not reviewing that rule 

subsection in this TSD notwithstanding the fact that it was submitted as part 

of the regulation adopted by the commission on September 6, 2006 and 

submitted to us on December 8, 2006. 
9

 In regulation R151-06, also submitted on December 8, 2006, 

the commission amended certain submitted rules in response to 

EPA’s preliminary comments. These amended rules include NAC 

445B.308, 445B.311, 445B.318, 445B.331, 445B.3363, 445B.3364, 

445B.3395, 445B.3457, 445B.3485, 445B.3487, and 445B.3489. As 

with R139-06, we consider these amended rules to supersede the 

versions of the corresponding rules submitted on January 12, 

2006. We note that three of the submitted rules, NAC 445B.308, 

445B.3363, and 445B.3364 were amended by the State Environmental 

Commission in both R151-06 and R139-06, and because they reflect 

different revisions, NDEP must re-submit a single version of 

these rules that incorporates both sets of changes. 

 Our consideration of the rules submitted on January 12, 

2006, as amended by the submittal dated December 8, 2006, and 

evaluated herein takes into account the public participation 

documentation contained in the February 16, 2005 (except, as 

noted, for the rules adopted on October 4, 2005 for which 

documentation was provided by NDEP in the January 12, 2006 SIP 

submittal and the rules adopted on September 6, 2006 for which 

documentation was provided by NDEP in the December 8, 2006 SIP 

submittal). CAA section 110(l) requires reasonable notice and 

public hearing prior to adoption of SIP revisions by States for 

subsequent submittal to EPA for approval or disapproval under 

CAA section 110(k)(3).3

 The public participation documentation 

provided by NDEP in the February 16, 2005 SIP submittal (and in 

the January 12, 2006 SIP submittal package for the October 4, 

2005 rule amendments) for new or amended rules is sufficient for 

the purposes of CAA section 110(l). Generally, however, neither 

the earlier nor the latter submittal included documentation of 

public notice and hearing for requested rescissions. 

The primary purpose of the January 12, 2006 SIP revision is 

to clarify and harmonize current State rules and statutes with 

the federally enforceable rules and statutes in the Nevada SIP. 

Because this SIP revision incorporates so many changes from the 

1970’s and 1980’s vintage SIP rules and statutes, EPA has 

decided to review and act on it in a series of separate 

rulemaking actions. The first such action (many definitions and 

certain sulfur emissions and burning rules) was proposed on 

September 13, 2005 (70 FR 53975) and finalized on March 27, 2006 

(71 FR 15040). The second related action (air pollution 

statutes) was proposed on June 9, 2006 (71 FR 33413) and 

finalized on August 31, 2006 (71 FR 51766). The third related 

 

3

 CAA section 110(l) states: “Each revision to an implementation plan 

submitted by a State under this chapter shall be adopted by such State after 

reasonable notice and public hearing. ... .” 
10

action (most of the State-requested SIP rescissions) was 

proposed on August 28, 2006 (71 FR 50875) and finalized (for 

most of the rescissions) on January 3, 2007 (72 FR 11). The 

fourth related action (monitoring and VOC rules) was proposed on 

August 31, 2006 (71 FR 51793) and finalized on December 11, 2006 

(71 FR 71486). 

The rulemaking for which this TSD has been prepared 

addresses the set of rules contained in NDEP’s January 12, 2006 

SIP revision submittal that establish permitting requirements 

for stationary sources under NDEP’s jurisdiction (excluding such 

requirements for new major sources or major modifications under 

parts C or D of title I of the CAA). For the reasons set forth 

below, this TSD recommends approval of three individual rules 

that we find to be separable from the rest of the program, 

disapproval of four individual, separable rules, disapproval of 

the set of 87 rules that comprise the bulk of the program, 

approval of two of the State’s seven rescissions of permitrelated rules in the existing SIP, disapproval of three of the 

rescissions, and deferral of two of the rescissions. 

III. EPA EVALUATION CRITERIA

EPA reviewed the submitted rules establishing the 

requirements for NDEP’s stationary source permitting program for 

compliance with the CAA requirements for SIPs in general set 

forth in CAA section 110(a)(2) and 40 CFR part 51, subpart I 

(“Review of New Sources and Modifications”), particularly 

section 51.160 (“Legally enforceable procedures”), 51.161 

(“Public availability of information”), 51.162 (“Identification 

of responsible agency”), 51.163 (“Administrative procedures”), 

and 51.164 (“Stack height procedures”) and also for compliance 

with CAA requirements for SIP revisions in CAA section 110(l) 

and 193. 

IV. DISCUSSION OF SUBMITTED RULES

In this section of the TSD, we provide a rule-by-rule 

discussion of the submitted rules and any corresponding rules in 

the existing SIP and identify any issues (including 

deficiencies) in the submitted rules or any significant 

differences between submitted rules and existing SIP rules. 

Unless otherwise noted, the submitted rules are based on the 

January 2005 Legislative Counsel Bureau codification of NAC 

chapter 445B. 
11

Where individual rules are separable from the rest of the 

permitting program, we provide a rule-specific recommendation 

for action. Most of the rules that comprise the permitting 

program are not separable and a recommendation for them as a 

whole is provided in section V (of this TSD). Following the 

evaluation of the permitting program in section V, we provide 

our evaluation of the NDEP’s request (in their January 12, 2006 

SIP revision) for rescission of certain permit-related rules in 

the SIP (see section VI of this TSD). 

Definitions (46) – 

NAC 445B.003 – “Adjacent properties” defined. This definition 

would be new to the Nevada SIP, and it clarifies the meaning of 

the phrase “contiguous or adjacent properties” as used in the 

definition of stationary source in NAC 445B.187. 

NAC 445B.0035 – “Administrative revision to a Class I operating 

permit” defined. This definition would be new to the Nevada 

SIP, and it refers to a revision of a Class I operating permit 

to incorporate relevant conditions of an operating permit to 

construct. 

NAC 445B.007 – “Affected state” defined. This definition would 

be new to the Nevada SIP, and it is used in connection with 

notification requirements for draft permits. This term is 

defined essentially the same as the term is defined in 40 CFR 

70.2 in connection with title V programs. 

NAC 445B.013 – “Allowable emissions” defined, as amended in 

section 7 of Regulation R096-05, adopted by the State 

Environmental Commission on October 4, 2005. This definition 

would be new to the Nevada SIP, and it means the emissions from 

a stationary source at its designed or actual maximum capacity, 

whichever is greater, except as reduced by any federally 

enforceable limitations on its emissions which are established 

by State laws or regulations, any applicable requirement, or by 

conditions of the stationary source’s operating permit, 

whichever is most stringent. 

NAC 445B.014 – “Alteration” defined. This definition would be 

new to the Nevada SIP, and it refers to any addition to, or 

enlargement, replacement, modification or change of the design, 

capacity, process, arrangement, operating hours or control 

apparatus that will affect the kind or amount of regulated air 

pollutants emitted. 
12

NAC 445B.016 – “Alternative operating scenarios” defined. This 

definition would be new to the Nevada SIP, and it refers to two 

or more modes or types of operation specifically identified by 

a stationary source in its application and approved by NDEP as 

a condition of the source’s operating permit. 

NAC 445B.019 – “Applicable requirement” defined. This definition 

would be new to the Nevada SIP, and it refers to, among other 

requirements, emissions limitations and work practices required 

under State law, the SIP, 40 CFR parts 60, 61, or 63, title IV 

or VI of the Act, and pre-construction permit conditions under 

title I of the Act. This definition is based on the definition 

of the same term in 40 CFR 70.2. 

NAC 445B.021 – “Area source” defined. This definition would be 

new to the Nevada SIP, and it means any stationary source of 

hazardous air pollutants that is not a major source. This 

defined term is not relied upon by any of the rules submitted 

to EPA for approval or by any of the rules in the existing SIP, 

and thus should be disapproved. The disapproval of this 

definition is separable from the actions on the rest of the 

January 12, 2006 and December 8, 2006 SIP revision submittals. 

RECOMMENDATION: SEPARABLE – FULL DISAPPROVAL. 

NAC 445B.028 – “Best available control technology” defined. This 

definition would be new to the Nevada SIP,4

 and it defines best 

available control technology (BACT) for sources that are 

subject to 40 CFR 52.21 by referencing the definition of BACT 

in 40 CFR 52.21, as adopted in NAC 445B.221.5 This defined term 

 

4 More precisely, a State definition of BACT would be new to the SIP. The 

Federal definition of BACT, and other terms used in connection with the 

prevention of significant deterioration (PSD) pre-construction review 

program, are currently part of the Nevada SIP pursuant to 40 CFR 52.1485(b). 

5

 NAC 445B.221 – Adoption by reference of provisions of federal law and 

regulations. NAC 445B.221 adopts by reference a number of federal laws and 

regulations as they existed on certain specified dates. NAC 445B.221 is cited 

in the following submitted rules (but was not itself submitted for approval 

into the SIP): 

• NAC 445B.028 - “Best available control technology” defined. 

• NAC 445B.087 - “Increment” defined. 

• NAC 445B.094 - “Major source” defined. 

• NAC 445B.187 - “Stationary source” defined. 

• NAC 445B.22083 - Construction, major modification or relocation of 

plants to generate electricity using steam produce by burning of fossil 

fuels. 

• NAC 445B.308 - Prerequisites and conditions for issuance of operating 

permits: environmental evaluation; compliance with control strategy; 

exemption from environmental evaluation. 

• NAC 445B.310 - Environmental evaluation: applicable sources. 
13

is not relied upon by any of the rules submitted to EPA for 

approval. BACT is a term used in existing SIP rule, NAQR 

article 13.1.3(3), but we are proposing in this action to 

approve NDEP’s request for rescission of NAQR article 

13.1.3(3), and thus a definition for BACT is not necessary. 

Thus, submitted rule NAC 445B.028 should be disapproved. The 

disapproval of this submitted rule is separable from the 

actions on the rest of the January 12, 2006 and December 8, 

2006 SIP revision submittals. RECOMMENDATION: SEPARABLE – FULL 

DISAPPROVAL. 

NAC 445B.035 – “Class I-B application” defined. This definition 

would be new to the Nevada SIP, and it refers to applications 

for any new stationary source or “significant modification” to 

an existing stationary source which is subject to the operating 

permit program requirements under title V of the Clean Air Act. 

NAC 445B.036 – “Class I source” defined. This definition would 

be new to the Nevada SIP, and it refers to title V sources, 

sources for which major modifications have been proposed, and 

major stationary sources. Because a source must be a major 

stationary source to propose to construct a “major 

modification,” the second category of sources is subsumed in 

the third category. Instead, we recommend that this definition 

 

• NAC 445B.311 - Environmental evaluation: required information. 

• NAC 445B.318 - Operating permits: separate permit required for each 

source; form of application; issuance or denial of permit; posting of 

permit. 

• NAC 445B.3363 - Operating permit to construct: application. 

• NAC 445B.33656 - Operating permit to construct for approval of 

plantwide applicability limitation: required conditions and 

information. 

• NAC 445B.3368 - Application: additional requirements; exception.

• NAC 445B.3395 – Review of application and determination of completeness 

by director; notice; expiration of permit.

• NAC 445B.344 - Significant revision of permit. 

Normally, in this context, we would identify the failure to submit a 

rule relied upon by another rule that has been submitted for approval into 

the SIP as a deficiency in the submittal. However, we find NDEP’s decision 

not to submit NAC 445B.221 in this instance to be acceptable. We believe that 

it is NDEP’s clear intention to update the SIP rules that rely on Federal law 

and regulations (as adopted in NAC 445B.221) automatically upon action by the 

State Environmental Commission to update NAC 445B.221 (e.g., with more recent 

dates) from time-to-time in response to changes made by Federal entities to 

the laws and regulations so adopted. As such, we believe that interpretation 

of the related SIP rules would not be ambiguous even though they cite a rule 

not included in the SIP. 
14

be amended to clarify that the term “class I” source includes 

any physical change that would occur at a non-major source if 

the change would constitute a “major stationary source” by 

itself. See 40 CFR 51.166(b)(1)(i)(c). 

NAC 445B.037 – “Class II source” defined. This definition would 

be new to the Nevada SIP, and it refers to sources that are 

subject to the State’s air pollution regulations but is neither 

a Class I source nor a Class III source. 

NAC 445B.038 – “Class III source” defined. This definition would 

be new to the Nevada SIP, and it refers to sources that emit or 

have the potential to emit, individually or in combination, a 

total of not more than 5 tons per year of PM10, NOx, SO2, VOC and 

H2S and less than 1,000 pounds per year of lead; that are not 

subject to title V of the Clean Air Act or 40 CFR parts 60 or 

61; that are not temporary sources nor located at or part of 

another stationary source, and whose owner or operator is not 

seeking a limitation on emissions to avoid 40 CFR part 63 or is 

not required to obtain an operating permit to operate solely to 

comply with NAC 45B.22037 relating to surface area 

disturbances. NAC 445B.038 denies class III status to sources 

that are subject to 40 CFR parts 60 or 61; this definition 

should be revised to deny class III status to sources that are 

subject to 40 CFR part 63 as well.

NAC 445B.044 – “Construction” defined, as amended in section 8 

of Regulation R096-05, adopted by the State Environmental 

Commission on October 4, 2005. Existing SIP rule: NAQR article 

1.42 – Construction, submitted on December 10, 1976, and 

approved on August 21, 1978 (43 FR 36932). This submitted 

definition is more inclusive than the corresponding provision 

in the existing SIP and is essentially the same as EPA’s 

definition of “construction” in 40 CFR 51.166(b)(8). 

NAC 445B.046 – “Contiguous property” defined. Existing SIP rule: 

Article 1.43 – Contiguous property, submitted on December 10, 

1976, and approved on August 21, 1978 (43 FR 36932). This 

submitted definition essentially repeats the corresponding 

provision in the existing SIP. 

Sec. 2 of Regulation R096-05 – “Dispersion technique” defined, 

adopted by the State Environmental Commission on October 4, 

2005. This definition would be new to the Nevada SIP, and it 

mirrors EPA’s definition of “dispersion technique” in 40 CFR 

51.100(hh). 
15

Sec. 3 of Regulation R096-05 – “Excessive concentration” 

defined, adopted by the State Environmental Commission on 

October 4, 2005. This definition would be new to the Nevada 

SIP, and it mirrors EPA’s definition of “excessive 

concentration” in 40 CFR 51.100(kk). 

NAC 445B.066 – “Existing stationary source” defined. This 

definition would be new to the Nevada SIP, and it means, for 

sources subject to CAA section 112, any source other than a new 

source, and for all other types of sources, it means a 

stationary source which was constructed, or for which the owner 

or operator submitted a complete application for an operating 

permit, before the “effective date of the program,” which is 

defined in submitted rule NAC 445B.055. NAC 445B.055 was 

approved by EPA in the SIP on March 27, 2006 (71 FR 15040). 

NAC 445B.068 – “Facility” defined. This definition would be new 

to the Nevada SIP. It includes any groups of activities which 

emit regulated air pollutants, are located on one or more 

contiguous properties, and are owned, operated or controlled by 

the same person. 

NAC 445B.069 – “Federally enforceable” defined. This definition 

would be new to the Nevada SIP, and it means enforceable by EPA 

pursuant to the CAA, EPA’s PSD regulations, or by citizens 

under CAA section 304. NAC 445B.069 also refers to EPA 

enforcement under 40 CFR 51.160 to 51.166, inclusive, or 40 CFR 

part 70. Code of Federal Regulations, title 40, part 51, 

sections 160 to 166 (40 CFR 51.160 to 51.166) contains EPA 

requirements for SIPs with respect to stationary source 

permitting programs, and is not a source of enforcement 

authority for EPA. Similarly, 40 CFR part 70 refers to EPA 

requirements for States in establishing operating permit rules 

for “title V” sources and is not a source of enforcement 

authority for EPA. 

EPA’s definition of the same term is as follows: “Federally 

enforceable” means all limitations and conditions which are 

enforceable by the Administrator, including those requirements 

developed pursuant to 40 CFR parts 60 and 61,6

 requirements 

within any applicable State implementation plan, any permit 

requirements established pursuant to 40 CFR 52.21 or under 

regulations approved pursuant to 40 CFR part 51, subpart I, 

 

6

 Notwithstanding the current EPA definition of this term, requirements 

developed pursuant to 40 CFR part 63, in addition to requirements developed 

pursuant to 40 CFR parts 60 and 61, should be listed among the requirements 

which are enforceable by EPA. 
16

including operating permits issued under an EPA-approved 

program that is incorporated into the State implementation plan 

and expressly requires adherence to any permit issued under 

such program.” See 40 CFR 51.166(b)(17). NAC 445B.069 must be 

revised to more closely match EPA’s definition. 

NAC 445B.070 – “Federally enforceable emissions cap” defined.

This definition would be new to the Nevada SIP, and it means a 

condition of an operating permit containing an emission 

limitation that the holder of the operating permit requested 

and NDEP approved and which is independent of any applicable 

requirement or requirements. 

NAC 445B.082 – “General permit” defined. This definition would 

be new to the Nevada SIP. It refers to an operating permit that 

covers numerous similar stationary sources. 

Sec. 4 of Regulation R096-05 – “Good engineering practice stack 

height” defined, adopted by the State Environmental Commission 

on October 4, 2005. This definition would be new to the Nevada 

SIP, and it largely mirrors EPA’s definition of “good 

engineering practice (GEP)” stack height in 40 CFR 51.100(ii). 

However, the State’s definition differs from EPA’s definition 

by replacing the phrase “stacks in existence before January 12, 

1979” with the phrase “stacks that commenced construction on or 

before January 12, 1979.” While we do not find this difference 

to be significant, we recommend that NDEP fix this minor 

deficiency when the rule is next amended. 

NAC 445B.087 – “Increment” defined. This definition would be new 

to the Nevada SIP, and it defines “increment” by reference to 

EPA’s prevention of significant deterioration (PSD) rule at 40 

CFR 52.21, as adopted in NAC 445B.221. 

NAC 445B.093 – “Major modification” defined. This definition 

would be new to the Nevada SIP, and it defines “major 

modification” by reference to EPA’s prevention of significant 

deterioration (PSD) rule at 40 CFR 52.21. In this instance, and 

unlike most of the adopted definitions that rely on 40 CFR 

52.21, NAC 445B.093 refers only to 40 CFR 52.21 and does not 

specify 40 CFR 52.21 as incorporated by reference in NAC 

445B.221. We recommend that the State Environmental Commission 

amend this definition accordingly unless there is some reason 

not to specify the incorporation by reference in NAC 445B.221 

in this particular definition. 
17

NAC 445B.094 – “Major source” defined. This definition would be 

new to the Nevada SIP, and it defines “major source” similarly 

to EPA’s definition of the same term in 40 CFR 70.2. 

NAC 445B.0945 – “Major stationary source” defined. Existing SIP 

rule: Article 1.104 – Major stationary source, submitted on 

December 10, 1976 and approved on August 21, 1978 (43 FR 

36932). This submitted definition would change the definition 

of “major stationary source” to refer to EPA’s definition of 

“major stationary source” in the prevention of significant 

deterioration (PSD) rule at 40 CFR 52.21(b)(1). In this 

instance, and unlike most of the adopted definitions that rely 

on 40 CFR 52.21, NAC 445B.0945 refers only to 40 CFR 52.21 and 

does not specify 40 CFR 52.21 as incorporated by reference in 

NAC 445B.221. We recommend that the State Environmental 

Commission amend this definition accordingly unless there is 

some reason not to specify the incorporation by reference in 

NAC 445B.221 in this particular definition. 

NAC 445B.099 – “Modification” defined. Existing SIP rule: 

Existing SIP rule: Article 1.109 – Modification, submitted on 

December 10, 1976 and approved on August 21, 1978 (43 FR 

36932). This submitted definition is essentially unchanged 

relative to the corresponding existing SIP provision, which 

defines “modification” as any physical change in, or change in 

the method of operation of, a stationary source which increases 

the amount of any air pollutant or result in the emission of 

any air pollutant not previously emitted. 

NAC 445B.104 – “Motor vehicle” defined. Existing SIP rule: 

Article 1.111 – Motor vehicle, submitted on December 10, 1976, 

and approved on August 21, 1978 (43 FR 36932). This submitted 

definition refers to a category of sources that are excluded 

from the definition of “stationary source” in NAC 445B.187. In 

doing so, the submitted provision relies on the definition of 

“motor vehicle” in NRS 485.050. Much like the existing SIP 

rule, NRS 485.050 defines “motor vehicle” to include every 

self-propelled vehicle which is designed for use upon a 

highway. However, NRS 485.050 was not submitted for approval 

into the SIP. NAC 445B.104 must be amended to eliminate the 

hanging reference or NRS 485.050 must be submitted and thereby 

avoid potential confusion in interpreting the term “stationary 

source” in NAC 445B.187. 

Sec. 5 of Regulation R096-05 – “Nearby” defined, adopted by the 

State Environmental Commission on October 4, 2005. This 
18

definition would be new to the Nevada SIP, and it mirrors EPA’s 

definition of “nearby” in 40 CFR 51.100(jj). 

NAC 445B.108 – “New stationary source” defined. This definition 

would be new to the Nevada SIP and it defines “new stationary 

source” in the CAA section 112 context in a manner consistent 

with EPA’s definition of “new source” in 40 CFR 61.02, and 

defines “new stationary source” in all other contexts as all 

sources for which an owner or operator has not submitted a 

complete application for an operating permit before the 

“effective date of the program.” See discussion of NAC 

445B.066, above. 

NAC 445B.117 – “Offset” defined. This definition would be new to 

the Nevada SIP, and it refers to a reduction in emissions at an 

existing stationary source which is greater than a 

corresponding increase in emissions of the same regulated air 

pollutant at a new or modified stationary source in the same 

nonattainment area. 

NAC 445B.123 – “Operating permit” defined. Existing SIP rule: 

NAC 445.559 – Operating permit, submitted on October 26, 1982 

and approved on March 27, 1984 (49 FR 11626). This submitted 

definition relies on the definition of “operating permit” in 

NRS 445B.145, which was approved as a revision to the Nevada 

SIP on August 31, 2006 (71 FR 51766). The definition of 

“operating permit” in NRS 445B.145 is essentially the same as 

that in existing SIP rule NAC 445.559. 

NAC 445B.124 – “Operating permit to construct” defined. This 

definition would be new to the Nevada SIP, and it refers to an 

operating permit signed and issued by NDEP which authorizes the 

construction and initial period of operation of a proposed new 

Class I stationary source or modification to an existing Class 

I stationary source, includes the conditions which apply to the 

construction and the initial period of operation of the new or 

modified source, and requires the holder of the operating 

permit to construct to submit a complete application for a 

Class I operating permit or modification of an existing Class I 

operating permit within 12 months after the date of the initial 

start-up of the new or modified Class I source. 

NAC 445B.1345 – “Plantwide applicability limitation” defined.

This definition would be new to the Nevada SIP, and it refers 

to a “plantwide applicability limitation” (PAL) as defined in 

EPA’s PSD regulation at 40 CFR 52.21(aa)(2)(v) that has been 

approved by NDEP and authorized in an operating permit to 
19

construct. In this instance, and unlike most of the adopted 

definitions that rely on 40 CFR 52.21, NAC 445B.1345 refers 

only to 40 CFR 52.21 and does not specify 40 CFR 52.21 as 

incorporated by reference in NAC 445B.221. We recommend that 

the State Environmental Commission amend this definition 

accordingly unless there is some reason not to specify the 

incorporation by reference in NAC 445B.221 in this particular 

definition. 

NAC 445B.138 – “Potential to emit” defined. This definition 

would be new to the Nevada SIP, and it essentially tracks EPA’s 

definition of “potential to emit” (PTE) in 40 CFR 51.166(b)(4) 

with the exception that NAC 445B.138 allows an emission 

limitation to be treated as part of a source’s design for the 

purposes of calculating PTE if the limitation is “enforceable 

by the director,” as opposed to “federally enforceable.” In the 

wake of legal challenges to aspects of EPA’s NSR regulations 

[see National Mining Association v. EPA, 59 F.3d 1351 (D.C. 

Cir. 1995) and Chemical Manufacturers Ass’n v. EPA, No. 89-

1514(D.C. Cir. Sept. 15, 1995)], EPA interprets the term 

“federally enforceable” in the NSR context to mean “federally 

enforceable or legally and practicably enforceable by a state 

or local air pollution control agency.” See Memorandum from 

John S. Seitz, Director, EPA Office of Air Quality Planning and 

Standards, entitled “Release of Interim Policy on Federal 

Enforceability of Limitations on Potential to Emit,” dated 

January 22, 1996. 

In light of the court cases and EPA’s interim policy, the 

State’s definition of PTE need not require that the given limit 

be “federally enforceable” but must be amended to require 

effective limits and to include criteria under which a limit 

will be deemed to be practicably enforceable by NDEP. Such 

criteria could include: 

• a requirement for the source to maintain emissions below a 

threshold or significance level that identifies each 

emission unit(s) contribution to the limit and any 

restrictions, control devices, or control measures 

employed; 

• the compliance determination period (e.g., hourly, daily, 

monthly, but not exceeding a 12-month rolling total 

calculated monthly depending on the compliance method 

used); 

• the method for quantifying emissions and determining 

compliance with the PTE limit; and 
20

• procedures and criteria for routine verification of 

monitoring data and of compliance, including recordkeeping, 

reporting, and testing in agreement with the method for 

quantifying emissions and determining compliance with the 

PTE limit. 

NAC 445B.142 – “Prevention of significant deterioration of air 

quality” defined. This definition would be new to the Nevada 

SIP, and it refers to the meaning ascribed to this same term in 

EPA’s PSD regulation (i.e., 40 CFR 52.21). In this instance, 

and unlike most of the adopted definitions that rely on 40 CFR 

52.21, NAC 445B.142 refers only to 40 CFR 52.21 and does not 

specify 40 CFR 52.21 as incorporated by reference in NAC 

445B.221. We recommend that the State Environmental Commission 

amend this definition accordingly unless there is some reason 

not to specify the incorporation by reference in NAC 445B.221 

in this particular definition. 

NAC 445B.147 – “Program” defined. This definition would be new 

to the Nevada SIP, and it refers to the program for issuing 

operating permits to class I sources that EPA has approved as 

complying with the requirements of 40 CFR part 70 (implementing 

title V of the CAA). EPA granted interim approval of NDEP’s 

title V operating permit program effective January 11, 1996 (60 

FR 63631, December 12, 1995) and then full approval of the 

amended program effective November 30, 2001 (66 FR 63188, 

December 5, 2001). The term “program” is relied upon in the 

definition of the term “effective date of the program,” as 

defined in NAC 445B.055, which was approved as a revision to 

the Nevada SIP on March 27, 2006 (71 FR 15040). 

NAC 445B.154 – “Renewal of an operating permit” defined. This 

definition would be new to the Nevada SIP, and it refers to the 

process by which a holder of an operating permit applies for 

and NDEP reissues the operating permit at the end of its term. 

NAC 445B.156 – “Responsible official” defined. This definition 

would be new to the Nevada SIP, and it largely tracks EPA’s 

definition of “responsible official” in 40 CFR 70.2. 

NAC 445B.157 – “Revision of an operating permit” defined. This 

definition would be new to the Nevada SIP, and it refers to any 

modification of, or any administrative amendment or 

administrative revision to, an operating permit. 

NAC 445B.178 – “Source reduction” defined. This definition would 

be new to the Nevada SIP, and it defines “source reduction” 
21

consistently with EPA’s definition of the same term in 40 CFR 

63.2. EPA’s definition was developed in connection with rules 

establishing Maximum Achievable Control Technology (MACT) 

standards for control of hazardous air pollutants from specific 

source categories. This defined term is not relied upon by any 

of the rules submitted to EPA for approval or by any of the 

rules in the existing SIP, and thus should be disapproved. The 

disapproval of this definition is separable from the actions on 

the rest of the January 12, 2006 and December 8, 2006 SIP 

revision submittals. RECOMMENDATION: SEPARABLE – FULL 

DISAPPROVAL.

NAC 445B.179 – “Special mobile equipment” defined. Existing SIP 

rule: Article 1.182 – Special mobile equipment, submitted on 

December 10, 1976, and approved on August 21, 1978 (43 FR 

36932). This submitted definition refers to a category of 

sources that are excluded from the definition of “stationary 

source” in NAC 445B.187. In doing so, the submitted provision 

relies on the definition of “special mobile equipment” in NRS 

482.123. Much like the existing SIP definition, NRS 482.123 

defines “special mobile equipment” to mean every vehicle not 

designed or used primarily for the transportation of persons or 

property upon a highway. However, NRS 482.123 was not submitted 

for approval into the SIP. NDEP must submit NRS 482.123 for 

approval into the SIP. 

NAC 445B.187 – “Stationary source” defined. Existing SIP rule: 

Article 1.187 – Stationary source, submitted on December 10, 

1976, and approved on August 21, 1978 (43 FR 36932). This 

submitted provision defines “stationary source” differently 

than the existing SIP but the new definition is generally 

consistent with EPA’s definitions of “stationary source” and 

“building, structure, facility, or installation” in 40 CFR 

51.166(b)(5) and (6), respectively. As defined in NAC 445B.187, 

the term “stationary source” excludes motor vehicles, special 

mobile equipment, nonroad engines and nonroad vehicles. 

The 1990 Amendments to the Clean Air Act added a new definition 

of “stationary source” in section 302(z). As defined in CAA 

section 302(z), “stationary source” means generally any source 

of an air pollutant except those emissions resulting directly 

from an internal combustion engine for transportation purposes 

or from a nonroad engine or nonroad vehicle. We believe that 

the addition of section 302(z) in the 1990 Amendments appears 

to strengthen congressional intent that certain internal 

combustion engines be subject to control under State permit 

programs, while requiring the exclusion of those internal 
22

combustion engines which are “nonroad,” a category of engines 

and vehicles which was also newly defined in the 1990 

Amendments. See EPA’s General Preamble for the Implementation 

of Title I of the Clean Air Act Amendments of 1990, 57 FR 

13498, at 13555 (April 16, 1992). 

As noted above, NAC 445B.187 excludes “special mobile 

equipment” as well as “nonroad engines” and “nonroad vehicles” 

from the stationary source permitting program. Presumably, 

“special mobile equipment” is not entirely comprised of nonroad 

engines or vehicles because otherwise there would be no need to 

include “special mobile equipment” in the list. Thus, “special 

mobile equipment” (as set forth in NRS 482.123 and incorporated 

into NAC 445B.179) may include engines that are used in 

stationary applications and must therefore be included in 

NDEP’s stationary source permitting program to comply with CAA 

section 302(z). The State Environmental Commission must amend 

NAC 445B.179 accordingly or NDEP must explain how the submitted 

definition complies with CAA section 302(z) notwithstanding the 

exclusion of internal combustion engines that do not fall 

within the nonroad engine or nonroad vehicle categories. 

NAC 445B.194 – “Temporary source” defined. This definition would 

be new to the Nevada SIP and it refers to any building, 

structure, facility, or installation which emits or may emit 

any regulated air pollutant, may be moved from one location to 

another, is located or operated in a location for a period of 

less than 12 months; and is not an “affected source.” 

NAC 445B.196 – “Toxic regulated air pollutant” defined. This 

definition would be new to the Nevada SIP, and it refers to any 

substance designated as such by the State Environmental 

Commission. This term is not relied upon by any of the rules 

submitted to EPA for approval or by any of the rules in the 

existing SIP, and thus should be disapproved. The disapproval 

of this submitted rule is separable from the actions on the 

rest of the January 12, 2006 and December 8, 2006 SIP revision 

submittals. RECOMMENDATION: SEPARABLE – FULL DISAPPROVAL. 

General Provisions (3) – 

NAC 445B.22083 – Construction, major modification or relocation 

of plants to generate electricity using steam produced by 

burning of fossil fuels, as amended in section 14 of Regulation 

R096-05, adopted by the State Environmental Commission on 

October 4, 2005. Existing SIP rule: 445B.22083, submitted on 

November 30, 2003, and approved on September 7, 2004 (69 FR 

54006). This submitted rule would supersede an earlier version 
23

approved into the Nevada SIP as part of EPA’s action in 

September 2004 on the amended Clark County NSR rules and amends 

a deficiency in that earlier version that could have been 

interpreted to allow relocation of certain power generating 

units to Ivanpah Valley without undergoing new source review. 

Thus, the submitted rule is an improvement over the existing 

SIP version. RECOMMENDATION: SEPARABLE - APPROVE. 

NAC 445B.250 - Notification of planned construction or 

reconstruction, as amended in section 18 of Regulation R096-05, 

adopted by the State Environmental Commission on October 4, 

2005. Existing SIP rule: Article 2.16.1, submitted on December 

10, 1976, and approved on August 21, 1978 (43 FR 36932). This 

submitted rule is essentially the same as existing SIP rule, 

NAQR article 2.16.1, subsections 2.16.1.1, 2.16.1.2, 2.16.1.3, 

and 2.16.1.5. The submitted rule has no subsection that in 

substance substitutes for 2.16.1.4, which requires owners or 

operators to provide notice to NDEP of the date of any physical 

or operational change to an existing facility which may 

increase the emission rate unless that change is specifically 

exempted under the applicable regulation or in article 2.14, 

which was never SIP-approved. However, we find that the notice 

requirement for modifications as set forth in NAQR article 

2.16.1.4 need not be brought forward in NAC 445B.250 because 

modification by mere notification is not allowed except for 

administrative amendments (NAC 445B.319) but rather requires an 

owner or operator to obtain a revision to the operating permit 

to commence construction of the modification. RECOMMENDATION: 

SEPARABLE - APPROVE. 

NAC 445B.252 - Testing and sampling, excluding paragraphs (b) 

and (c) of subsection (2) and excluding subsection (6).

Existing SIP rule: NAC 445.682, submitted on October 26, 1982, 

and approved on March 27, 1984 (49 FR 11626). This submitted 

rule authorizes NDEP to conduct or order the testing and 

sampling of emissions from new or modified sources and 

establishes certain requirements for such testing and sampling. 

The submitted rule largely mirrors the existing SIP rule except 

that it no longer allows for NDEP to approve equivalent or 

alternative test methods. The deletion of NDEP’s discretion in 

this context represents a strengthening of the rule. The 

submitted rule contains the following editing error: the phrase 

“method of reference” is used in NAC 445B.252(2)(a) when 

“reference method” is intended. See NAC 445B.152 (“Reference 

method” defined). This minor error should be corrected by the 

State Environmental Commission when the rule is next amended. 

RECOMMENDATION: SEPARABLE - APPROVE. 
24

Operating Permits Generally (18) - 

NAC 445B.287 – Operating permits: general requirements; 

exception; restriction on transfers, excluding subsection (2). 

Existing SIP rule: NAC 445.704, submitted on October 26, 1982 

and approved on March 27, 1984 (49 FR 11626). This submitted 

rule sets forth the general requirement for stationary sources 

to obtain an operating permit, operating permit to construct, 

or permit to construct and cites the rules that apply to permit 

requirements for source modifications. This rule also limits 

transferability of permits. Like the existing SIP, the 

submitted rule exempts certain sources from the general 

permitting requirement, but NAC 445B.287 also exempts certain 

other sources (referred to in “subsection 2,” a portion of the 

rule that was not included in the submittal) from permit 

revision requirements. NDEP must submit “subsection 2” for EPA 

review and approval as part of the SIP revision or amend the 

rule to eliminate the related exemption. We also note that the 

submitted rule does not include an equivalent provision to 

subsection (2) from the existing SIP rule that states: 

“Registration certificates and operating permits for single 

sources may be issued through an approved local air pollution 

control program.” However, we find that elimination of that 

particular subsection from the SIP would be inconsequential 

because the SIP otherwise provides for such local permitting 

programs [e.g., see NRS 445B.500, which we approved on August 

31, 2006 (71 FR 51766)].

NAC 445B.288 – Operating permits: exemptions from requirements; 

insignificant activities. Existing SIP rule: NAC 445.705, 

submitted on October 26, 1982 and approved on March 27, 1984 

(49 FR 11626). The existing SIP rule lists nine categories of 

“single sources” as exempt from registration and operating 

permit requirements: (1) air-conditioning equipment or fuelburning equipment having a rating of less then 4 MMBtu/hour; 

(2) motor vehicles, special mobile equipment and internal 

combustion engines; (3) residential and commercial housekeeping 

vacuum systems; (4) incinerators with less than 25 lb/hour 

rated burning capacity; (5) agricultural land use; (6) storage 

containers for gasoline, petroleum distillate or other VOC 

having a capacity of less than 40,000 gallons; (7) equipment or 

contrivances used exclusively for the processing of food for 

human consumption; (8) disturbing topsoil of less than 20 

acres; and (9) process weight rates of less than 50 lb/hour. 

This submitted rule lists the following categories of sources 

that are exempt from the requirement to obtain an operating 
25

permit: sources that would otherwise be required to obtain an 

operating permit solely because they are subject to either 40 

CFR part 60, subpart AAA or part 61, subpart M, and 

agricultural equipment used in the normal operation of a farm, 

other than agricultural equipment that is classified as, or 

located at, a source for which a permit is required under title 

V of the Act or which is subject to any standard set forth in 

40 CFR part 60 or 61. This rule should be amended to exclude 

from exemption agricultural equipment which is subject to any 

standard set forth in 40 CFR part 63 as well. 

The submitted rule also establishes eight categories of 

emission units (akin to the former term “single source”) as 

“insignificant activities,” including five of the categories of 

“single sources” exempt under the existing SIP rule 

(specifically, categories #1, #4, #6, #7, and #9, above). As 

explained in more detail below, “insignificant activities” are 

not required to obtain an operating permit. 

The exemption in the existing SIP rule for motor vehicles and 

special mobile equipment (see #2, above) is now intrinsic to 

the term “stationary source” as defined in submitted NAC 

445B.187, and the exemption for internal combustion engines has 

been newly limited to smaller engines and low-use engines. The 

exemptions for residential and commercial housekeeping vacuum 

systems, agricultural land use, and surface area disturbances 

of less than 20 acres (see #3, #5 and #8, above) have not been 

carried forward in the submitted rule, but, with respect to the 

latter two (agricultural land use and surface area 

disturbances), operating permits or exemptions therefrom are 

provided for in NAC 445B.22037 (“Emissions of particulate 

matter: fugitive dust”), which has been submitted for approval 

as part of the January 12, 2006 SIP revision. 

The submitted rule also establishes “emergency generator” as an 

insignificant activity. Emergency generators qualify for status 

as an insignificant activity only if the generator is used to 

generate electrical power to maintain essential operations 

during unplanned electrical power outages. Such limited use 

ensures that emergency generators generate de minimis emissions 

impacts. NAC 445B.288 disqualifies (as an insignificant 

activity) emergency generators owned or operated by a class II 

source and whose potential to emit is calculated on the basis 

of less than 500 hours of operation. We can think of no 

rationale explanation for restricting this limitation to class 

II sources and recommend that the rule be amended to extend 
26

this limitation to emergency generators at class I sources as 

well. 

Under the submitted rule, “insignificant activities” are not 

required to obtain an operating permit but must be included in 

any determination of whether a stationary source is a major 

source. The submitted rule also provides for NDEP to approve 

any emission unit as an insignificant activity if the emission 

unit is not otherwise subject to a specific applicable 

requirement and whose potential to emit is less than 2 tons per 

year and meets other listed criteria. 

NAC 445B.295 – Application: General requirements, as amended in 

section 1 of Regulation R139-06, adopted by the State 

Environmental Commission on September 6, 2006. This rule would 

be new to the Nevada SIP, and it sets forth the general content 

requirements for applications for operating permits, except as 

otherwise provided in the rules related to applications for 

plantwide applicability limitations. Required types of 

information for applications include information to identify 

the applicant, a description of the processes and products, a 

description of the fuels to be used, a description of any 

control air pollution control equipment to be installed, etc. 

NAC 445B.297 – Application: submission of application and 

supplementary or corrected information, excluding subsection 

(2). This rule would be new to the Nevada SIP, and it provides 

that applicants must use appropriate forms provided by NDEP and 

provides for certification of the application by a responsible 

official of the stationary source. 

NAC 445B.298 – Application: official date of submittal. Existing 

SIP rule: NAC 445.706(1), submitted on October 26, 1982 and 

approved on March 27, 1984 (49 FR 11626). This submitted rule 

appropriately changes the official date of all applications for 

stationary source permits from the U.S. registered or certified 

postmark date (in the existing SIP rule) to the date on which 

NDEP determines that the application is complete. 

NAC 445B.305 – Operating permits: imposition of more stringent 

standards for emissions. This rule would be new to the Nevada 

SIP, and it provides NDEP with authority to impose standards 

for emissions on a proposed stationary source that are more 

stringent than those found in the State’s air pollution rules 

as a condition of approving an operating permit for the 

proposed stationary source. 
27

NAC 445B.308 – Prerequisites and conditions for issuance of 

operating permits: environmental evaluation; compliance with 

control strategy; exemption from environmental evaluation, as 

amended in section 3 of Regulation R139-06 and as amended in 

section 9 of Regulation R151-06, both of which were adopted by 

the State Environmental Commission on September 6, 2006, but 

excluding paragraph (d) of subsection (2) and excluding 

subsections (4), (5), and (10). Existing SIP rules: NAQR 

article 13.1.1, submitted on July 24, 1979 and approved on June 

23, 1982 (47 FR 27070); NAQR article 13.1.3.1, submitted on 

March 17, 1980 and approved on April 14, 1981 (46 FR 21758); 

and NAQR article 13.1.4, 13.1.5, and 13.1.6, submitted on April 

1, 1974 and approved on March 26, 1975 (40 FR 13306). First of 

all, we note that NDEP has submitted two different versions of 

NAC 445B.308. One version reflects changes adopted in 

Regulation R139-06, and the other reflects changes adopted in 

Regulation R151-06. NDEP must re-submit a single version of the 

rule or withdraw one of the two versions to avoid unnecessary 

confusion. 

These submitted rules require applicants to submit 

environmental evaluations (EE) in accordance with the related 

EE content requirements contained in NAC 445B.308 to 445B.314, 

inclusive, for a new or modified stationary source, for a PAL, 

or to allow a PAL to expire and not be renewed. These rules 

provide that NDEP shall not issue an operating permit or a 

revision of an operating permit if the EE shows that the 

stationary source will prevent the attainment and maintenance 

of the state or national ambient air quality standards as set 

forth in NAC 445B.22097, will cause a violation of the 

applicable control strategy contained in the approved air 

quality plan, will cause a violation of any applicable 

requirement. 

 The submitted rules also require certain applicants to comply 

with EPA’s PSD regulation at 40 CFR 52.21, as adopted by 

reference in NAC 445B.221 and provides authority for NDEP to 

impose any reasonable conditions on approval, including 

monitoring. Also, under NAC 445B.308, issuance of an operating 

permit for any stationary source does not affect the 

responsibilities of the source owner to comply with any other 

portion of the control strategy. 

NAC 445B.310 – Environmental evaluation: applicable sources, as 

amended in section 4 of Regulation R139-06, adopted by the 

State Environmental Commission on September 6, 2006. Existing 

SIP rules: NAQR article 13.2.1, 13.2.2, and 13.2.3, submitted 
28

July 24, 1979 and approved on June 23, 1982 (47 FR 27070); and 

NAQR article 13.1.7, submitted on April 1, 1974 and approved on 

March 26, 1975 (40 FR 13306). This submitted rule establishes 

thresholds based on potential to emit (PTE) for determining 

which new or modified stationary sources are subject to the EE 

requirement established in NAC 445B.308. For a new source, the 

threshold is a PTE of 25 tons per year of a regulated air 

pollutant; for a modification of a source with a PTE greater 

than 25 tons per year, the threshold is a PTE of 10 tons per 

year of a regulated air pollutant. Notwithstanding the above, 

NAC 445B.310 requires EEs for all applications for approval of 

PALs and expiration of PALs. The corresponding EE threshold 

under the existing SIP rule is approximately 100 tons per year, 

and thus, the submitted rule would strengthen the SIP by 

establishing a lower EE requirement threshold. 

 

NAC 445B.311 – Environmental evaluation: required information, 

as amended in section 10 of Regulation R151-06, adopted by the 

State Environmental Commission on September 6, 2006. Existing 

SIP rule: NAQR article 13.3, 13.3.1, 13.3.1.1, and 13.3.1.2), 

submitted on July 24, 1979 and approved on June 12, 1982 (47 FR 

27070). This submitted rule establishes content requirements 

for EEs, including general description information, but also 

detailed requirements related to good engineering practice 

stack height determinations, dispersion modeling, and 

meteorological information. Subsection (3) of NAC 445B.311 

relies on NAC 445B.083, which has not been, but must be, 

submitted for approval as part of the SIP. 

 Code of Federal Regulations, title 40, part 51, section 160 

establishes the requirement for States to include in their SIPs 

legally enforceable procedures for permitting of new or 

modified sources, and subsection (f) of 40 CFR 51.160 requires 

that such procedures must discuss the air quality data and the 

dispersion or other air quality modeling used to meet the 

requirements of the permitting program. Subsection (f)(1) of 40 

CFR 51.160 requires that air quality modeling be based on air 

quality models, databases, and other requirements specified in 

appendix W of 40 CFR part 51 (i.e., Guideline on Air Quality 

Models). Further, subsection (f)(2) of 40 CFR 51.160 allows for 

case-by-case modification or substitution of models, databases, 

and other requirements specified in appendix W with written 

approval of EPA and after notice and opportunity for public 

comment. NAC 445B.311(4)(a) requires that air quality modeling 

be based on air quality models, databases, and other 

requirements specified in appendix W but allows NDEP to 

authorize use of a modification or substitution of such a model 
29

if NDEP determines that the modification or substitution is 

appropriate but does not require NDEP to seek written approval 

from EPA nor does the rule require notice and opportunity for 

public comment. NAC 445B.311 must be amended accordingly to 

comply with 40 CFR 51.160(f). 

NAC 445B.313 – Method for determining heat input: class I 

sources. Existing SIP rule: NAQR article 13.2.4, submitted on 

July 24, 1979 and approved on June 23, 1982 (47 FR 27070). This 

submitted rule provides that, for the purposes of determining 

the effects of a class I source on the quality of the ambient 

air and for the purposes of determining the applicability of a 

federally enforceable standard or requirement to an emission 

unit, the heat input will be determined by using the 

appropriate method of the ASTM contained in 40 CFR parts 51, 

52, 60, and 61. 

 First, NAC 445B.313 does not identify the appropriate method 

for determining heat input for combustion sources. 

Applicability determinations for combustion sources must be 

based on maximum heat input. The method for determining maximum 

heat input is well established and is determined by combining 

the maximum fuel rate, determined by the manufacturer, with the 

total calorific value of the fuel, determined by the latest 

applicable ASTM methods. Second, while ASTM methods are 

appropriate for determining calorific values of fuels, the 

general reference in NAC 445B.313 to appropriate ASTM methods 

in 40 CFR parts 51, 52, 60, and 61 is too vague to be 

enforceable. NAC 445B.313 must be amended accordingly. 

NAC 445B.3135 – Method for determining heat input: class II 

sources. Existing SIP rule: NAQR article 13.2.4, submitted on 

July 24, 1979 and approved on June 23, 1982 (47 FR 27070). This 

submitted rule provides that, for the purposes of determining 

the effects of a class II source on the quality of the ambient 

air in an EE, the heat input is the aggregate heat content of 

all combusted fuels, or the guaranteed maximum input of the 

manufacturer or designer of the equipment, whichever is 

greater. The total heat input of all fuel-burning units in a 

plant or on the premises must be used to determine the maximum 

amount of a regulated air pollutant which may be emitted. 

NAC 445B.314 – Method for determining heat input: class III 

sources. Existing SIP rule: NAQR article 13.2.4, submitted on 

July 24, 1979 and approved on June 23, 1982 (47 FR 27070). This 

submitted rule establishes the same method for determining heat 
30

input for class III sources as set forth in NAC 445B.3135 for 

class II sources. 

NAC 445B.315 – Contents of operating permits: exception for 

operating permits to construct; required conditions. This rule 

would be new to the Nevada SIP. This rule, which does not apply 

to operating permits to construct, specifies content 

requirements for operating permits, requires NDEP to specify 

the legal authority for each condition of the permit and 

specifies 11 conditions that must be contained in operating 

permits, including such conditions as a 5-year term; record 

retention; severability; compliance requirement and potential 

consequences of noncompliance; authority for NDEP to revise, 

revoke and reissue, reopen and revise, or terminate permits for 

cause; non-conveyance of a property right; agreement to provide 

the director with information; authorization for inspections by 

NDEP; and certifications of truth, accuracy, and completeness 

by responsible officials of the stationary source for any 

documents required to be submitted by any condition of the 

permit. 

NAC 445B.318 – Operating permits: separate permit required for 

each source; form of application; issuance or denial of permit; 

posting of permit, as amended in section 11 of Regulation R151-

06, adopted by the State Environmental Commission on September 

6, 2006. Existing SIP rules: NAC 445.707 [subsection (1), first 

sentence, and subsection (2)], 445.712 [subsection (2)] and 

445.714, submitted on October 26, 1982 and approved on March 

27, 1984 (49 FR 11626). This submitted rule includes various 

requirements for operating permits, including a requirement for 

such a permit for each new or existing stationary source, 

provisions related to application forms and replacement permits 

and the posting of permits. This rule includes essentially all 

of the requirements found in the corresponding existing SIP 

rules. Like existing SIP rule NAC 445.712, NAC 445B.318 

restricts the discretion of NDEP to withhold issuance of an 

operating permit under certain circumstances. 

NAC 445B.319 – Operating permits: administrative amendment, 

excluding paragraph (b) of subsection (3). This rule would be 

new to the Nevada SIP, and it identifies the types of permit 

revisions that qualify as administrative amendments, such as 

typographical errors, changes in phone numbers, and changes in 

ownership under certain conditions. These revisions are largely 

the same as the types of that EPA identifies as administrative 

in nature in 40 CFR 70.7(d). This submitted rule also includes 

a reference to NAC 445B.327, a rule that has not been submitted 
31

as part of the SIP revision, but in this case, the “hanging” 

reference need not be submitted because it relates to fees. As 

a general matter, the CAA does not require permit-related fee 

provisions to be included in SIPs in areas, such as the area 

under NDEP jurisdiction, where title V programs have been 

approved. 

NAC 445B.325 – Operating permits: Termination, reopening and 

revision, revision, or revocation and reissuance, excluding 

subsections (1), (3), and (4). This rule would be new to the 

Nevada SIP, and it identifies the circumstances under which an 

operating permit may be terminated, reopened and revised, 

revised, or revoked and reissued. Such circumstances include 

determinations by NDEP or EPA that a permit contains a material 

mistake, is based on inaccurate statements, or does not as 

written ensure compliance with all applicable requirements, or 

determinations by NDEP that there has been a violation of the 

State’s air pollution regulations or any condition contained in 

the permit. This provision also limits the revision of permits 

to those portions of the permit for which cause existed for 

reopening and provides that reopenings of a permit must comply 

with all of the relevant requirements for the issuance or 

revision of a permit, including procedural requirements. 

NAC 445B.326 – Operating permits: assertion of emergency as 

affirmative defense to action for noncompliance. This rule 

would be new to the Nevada SIP, and it establishes an 

affirmative defense to actions brought for noncompliance with a 

technology-based emission limitation contained in the operating 

permit if the holder of the permit demonstrates through signed, 

contemporaneous operating logs or other relevant evidence that 

an emergency occurred and the holder of the permit can identify 

the cause of the emergency, that the facility was being 

properly operated at the time of the emergency, that all 

reasonable steps were taken during the emergency to minimize 

excess emissions, and that holder submitted timely notification 

to NDEP. Under this rule, the holder of the operating permit 

who invokes this rule bears the burden of proof. 

This provision is modeled off of 40 CFR 70.6(g) and is 

acceptable as applied to permit conditions; however, it is not 

approvable under CAA section 110(a)(2) if applied to 

technology-based emission limitations approved into the SIP. 

Because of the potential for confusion, NAC 445B.326 should be 

withdrawn from further consideration as part of the Nevada SIP 

or must be revised to clarify that the affirmative defense 

applies only to actions brought for noncompliance of permit 
32

conditions and not to technology-based emission limitations 

approved into the SIP. 

NAC 445B.331 – Request for change of location of emission unit, 

as amended in section 12 of Regulation R151-06, adopted by the 

State Environmental Commission on September 6, 2006. Existing 

SIP rule: NAC 445.716, submitted on October 26, 1982 and 

approved on March 27, 1984 (49 FR 11626). This submitted rule 

sets forth requirements (e.g., in advance and in writing, 

submitted with fee) for changing the locations of emissions 

units that are similar to the requirements in the corresponding 

rule in the SIP. This submitted rule does not clearly apply 

only to changes in location of emission units within the 

confines of an existing stationary source. Relocation of an 

emission unit to a site outside of the source at which it is 

originally permitted should trigger new source review. The 

State Environmental Commission must amend NAC 445B.331 to 

clarify that NAC 445B.331 only provides for changes in 

locations of emission units within the confines of existing 

sources at which the units are located. 

Class I Operating Permits (16) - 

NAC 445B.3361 – General requirements, as amended in section 6 of 

Regulation R139-06, adopted by the State Environmental 

Commission on September 6, 2006, but excluding subsection 1, 

paragraph (b); subsection 5, paragraph (a), subparagraph (2); 

and subsections 6 and 7 of the amended rule (which relate to 

the non-criteria pollutant, mercury). Existing SIP rule: NAC 

445.707 (subsection (1), second sentence), submitted on October 

26, 1982 and approved on March 27, 1984 (49 FR 11626), in 

connection with administrative revisions to operating permits 

to incorporate the conditions of class I operating permits to 

construct into the existing class I operating permits as set 

forth in NAC 445B.3361(7)(b). This submitted rule requires new 

or modified class I stationary sources to apply for and obtain 

operating permits to construct. It also contains separate 

provisions for PALs. Except under certain circumstances, once 

an owner or operator has obtained a valid operating permit to 

construct, the owner or operator need not obtain an operating 

permit before commencing construction, initial start-up and 

operation of the new or modified class I source but must submit 

a complete application of a class I operating permit within 12 

months after the date of initial start-up. 

NAC 445B.3363 – Operating permit to construct: application, as 

amended in section 7 of Regulation R139-06 and as amended in 

section 13 of Regulation R151-06, both of which were adopted by 
33

the State Environmental Commission on September 6, 2006. First 

of all, we note that NDEP has submitted two different versions 

of NAC 445B.3363. One version reflects changes adopted in 

Regulation R139-06, and the other reflects changes adopted in 

Regulation R151-06. NDEP must re-submit a single version of the 

rule or withdraw one of the two versions to avoid unnecessary 

confusion. 

 

These rules would be new to the Nevada SIP, and they set forth 

additional content requirements for application for class I 

operating permits to construct or revisions of class I 

operating permits to construct. Specific additional 

requirements are also established for applications for 

operating permits to construct for new major stationary sources 

and major modifications as well as non-major modifications at 

existing major stationary sources. Exceptions are provided in 

relation to PALs. 

NAC 445B.33637 – Operating permit to construct for approval of 

plantwide applicability limitation: Application. This rule 

would be new to the Nevada SIP, and it establishes content 

requirements for applications for operating permits to 

construct for the approval of PALs for major stationary 

sources, operating permits to construct to allow PALs to expire 

and not be renewed, operating permits to construct for the 

renewal of PALs, and operating permits to construct for 

increasing PALs. 

NAC 445B.3364 – Operating permit to construct: review of 

application and determination of completeness by director; 

notice, as amended in section 8 of Regulation R139-06 and as 

amended in section 14 of Regulation R151-06, both of which were 

adopted by the State Environmental Commission on September 6, 

2006. Existing SIP rules: NAC 445.707 [subsections (3), (4), 

and (5)], submitted on October 26, 1982 and approved on March 

27, 1984 (49 FR 11626) and NAQR article 13.1.2, submitted on 

July 24, 1979 and approved on June 23, 1982 (47 FR 27070). 

First of all, we note that NDEP has submitted two different 

versions of NAC 445B.3364. One version reflects changes adopted 

in Regulation R139-06, and the other reflects changes adopted 

in Regulation R151-06. NDEP must re-submit a single version of 

the rule or withdraw one of the two versions to avoid 

unnecessary confusion. 

These submitted rules establish deadlines for NDEP review of 

application for class I operating permits to construct or 

revisions to class I operating permits to construct. These 
34

timelines include completeness determinations, preliminary 

intents to issue or deny, and final decisions on permit 

applications. Separate deadlines are established for 

applications involving PALs. NAC 445B.3364 also establishes 

public participation requirements, including publication of 

notice and provision for a 30-day comment period and indicates 

the types of information that NDEP will take into account when 

making the final decision to issue or deny the permit, 

including the effect of such a facility on the maintenance of 

state and national ambient air quality standards found in NAC 

445B.22097. 

NAC 445B.3365 – Operating permit to construct: required 

conditions, as amended in section 9 of Regulation R139-06, 

adopted by the State Environmental Commission on September 6, 

2006. This rule would be new to the Nevada SIP, and it extends 

essentially the same required conditions set forth in NAC 

445B.315 for operating permits to class I operating permits to 

construct with exceptions for operating permits to construct 

for approval of PALs. 

NAC 445B.33656 – Operating permit to construct for approval of 

plantwide applicability limitation: required conditions and 

information, as amended in section 10 of Regulation R139-06, 

adopted by the State Environmental Commission on September 6, 

2006. This rule would be new to the Nevada SIP, and it extends 

essentially the same required conditions set forth in NAC 

445B.315 for operating permits to class I operating permits to 

construct for approval of PALs but with certain appropriate 

substitutions of the requirements in NAC 445B.315 with those 

from 40 CFR 52.21(aa). 

NAC 445B.3366 – Operating permit to construct: expiration; 

extension, as amended in section 11 of Regulation R139-06, 

adopted by the State Environmental Commission on September 6, 

2006. Existing SIP rule: NAC 445.707 [subsection (6)], 

submitted on October 26, 1982 and approved on March 27, 1984 

(49 FR 11626). This submitted rule establishes expiration dates 

for operating permits to construct for construction occurring 

in a single phase and for construction occurring in multiple 

phases. Specific exceptions are established for class I 

operating permits to construct involving PALs. 

The term “commence” is used in this rule but is not defined in 

NAC chapter 445B. The word “commenced” is defined in NAQR 

article 1.36, which is being retained in the SIP, but this old 

definition relates only to NSPS. Because the term “commenced” 
35

is subject to different interpretations and the existing SIP 

definition of the term does not apply in the permitting 

context, the State Environmental Commission must adopt a 

definition of “commence” in relation to the construction of 

sources or modifications based on EPA’s definition of 

“commence” in 40 CFR 51.166(b)(9) as well as the related 

definitions for “necessary preconstruction approvals or 

permits,” and “begin actual construction” in 40 CFR 

51.166(b)(10) and (11). 

NAC 445B.3368 – Application: additional requirements; exception.

This rule would be new to the Nevada SIP, and it establishes 

additional content requirements for applications for operating 

permits for those facilities for which applications for 

operating permits to construct were not previously submitted. 

Such content requirements include applicable test methods, 

calculations, compliance plans, and compliance certifications. 

NAC 445B.3368 also establishes specific additional requirements 

for applications for class I-B applications for class I 

operating permits. 

NAC 445B.3375 – Class I-B application: filing requirement, as 

amended in section 12 of Regulation R139-06, adopted by the 

State Environmental Commission on September 6, 2006, but 

excluding subsections (2) and (3). Existing SIP rule: NAC 

445.707 (subsection (1), second sentence), submitted on October 

26, 1982 and approved on March 27, 1984 (49 FR 11626), in 

connection with class I sources. This submitted rule requires 

stationary sources to file an class I-B application and obtain 

a class I operating permit before commencing the construction, 

reconstruction or modification of existing or proposed class I 

stationary sources, certain modifications to class I sources, 

and modifications of class II sources that result in total 

emissions above the thresholds for a “major source” as defined 

in NAC 445B.094. 

NAC 445B.3395 – Review of application and determination of 

completeness by director; notice; expiration of permit, as 

amended in section 15 of Regulation R151-06, adopted by the 

State Environmental Commission on September 6, 2006, but 

excluding subsections (13), (14), and (15). Existing SIP rule: 

NAC 445.707 [subsections (3), (4), and (5)], submitted on 

October 26, 1982 and approved on March 27, 1984 (49 FR 11626). 

This submitted rule establishes similar types of requirements 

for review by NDEP of applications for class I operating 

permits and significant revisions to class I operating permits 

as established in NAC 445B.3364 for applications for class I 
36

operating permits to construct and revisions to class I 

operating permits to construct. 

NAC 445B.340 – Prerequisites to issuance, revision or renewal of 

permit, excluding subsection (3). This rule would be new to the 

Nevada SIP, and it identifies prerequisites for NDEP’s issuance 

of a class I operating permit, or a revision of or a renewal of 

a class I operating permit. 

NAC 445B.342 – Revision of permit: exception when making certain 

changes; notification of changes, as amended in section 22 of 

Regulation R096-05, adopted by the State Environmental 

Commission on October 4, 2005, but excluding paragraph (e) of 

subsection (3). This rule would be new to the Nevada SIP, and 

it allows owners and operator of a stationary source to make 

changes which contravene an express term of the operating 

permit without a revision of the operating permit under certain 

specified circumstances. This rule does not allow changes to 

conditions related to monitoring, methods of testing, 

recordkeeping, reporting, or compliance certification. For each 

change, the owner or operator must provide written notification 

to NDEP and EPA at least 7 days before making the change. 

NAC 445B.3425 – Minor revision of permit. Existing SIP rule: NAC 

445.707 [subsection (3)], submitted on October 26, 1982 and 

approved on March 27, 1984 (49 FR 11626). This submitted rule 

identifies several types of revisions that qualify as minor and 

thus are subject to a streamlined process that does not include 

public review. The submitted rule is largely patterned off of 

40 CFR 70.7(e)(2) with respect to the types of revisions that 

qualify as minor. 

NAC 445B.344 – Significant revision of permit. This rule would 

be new to the Nevada SIP, and it allows holders of operating 

permits to request a significant revision to a class I 

operating permit if the proposed change does not qualify as an 

administrative amendment, a minor revision, or as the type of 

change for which no revision to the operating permit is 

necessary. This rule establishes content requirements for 

applications for significant revision to class I operating 

permits and requires the same extent of public participation as 

required for initial class I operating permits. 

NAC 445B.3441 – Administrative revision of permit to incorporate 

conditions of certain permits to construct, as amended in 

section 13 of Regulation R139-06, adopted by the State 

Environmental Commission on September 6, 2006. This rule would 
37

be new to the Nevada SIP, and it establishes content and public 

process requirements for applications for administrative 

revisions to a class I operating permit to incorporate the 

conditions of class I operating permits to construct for the 

class I stationary source. 

NAC 445B.3443 – Renewal of permit. Existing SIP rule: NAC 

445.713, submitted on October 26, 1982 and approved on March 

27, 1984 (49 FR 11626). This submitted rule provides for 

renewal of operating permits 5 years from the date of issuance 

and establishes the schedule that must be followed for permit 

renewals, identifies the content requirements for applications 

for renewals, and specifies the related fees. As such, the 

submitted rule contains the same types of requirements as the 

corresponding rule in the existing SIP. 

Class II Operating Permits (6) - 

NAC 445B.3453 – Application: general requirements. Existing SIP 

rule: NAC 445.707 (subsection (1), second sentence), submitted 

on October 26, 1982 and approved on March 27, 1984 (49 FR 

11626), in connection with class II sources. This submitted 

rule requires owners or operators of sources not subject to the 

permitting requirements for class I sources to file an 

application and obtain a class II or III operating permit or a 

revision to such a permit before commencing construction of the 

proposed stationary source or proposed modification. 

NAC 445B.3457 – Application: determination of completeness by 

director, as amended in section 16 of Regulation R151-06, 

adopted by the State Environmental Commission on September 6, 

2006. Existing SIP rule: NAC 445.707 [subsection (3)], 

submitted on October 26, 1982 and approved on March 27, 1984 

(49 FR 11626). This submitted rule establishes the deadlines 

for review of applications for class II operating permits and 

revisions to class II operating permits. This rule also 

establishes public participation requirements for class II 

sources for which NDEP determines that the change to the 

stationary source results in a significant change in air 

quality at any location where the public is present on a 

regular basis. Thus, public participation is contingent upon 

NDEP’s broad discretionary authority. By reducing the 

requirements for notice and opportunity for public comment, 

this submitted provision would weaken the existing SIP with 

respect to permitting of all sources except class I sources. In 

addition, the limited public participation provided for in this 

rule does not comply with the requirements of 40 CFR 51.161 and 

must be amended accordingly. 
38

NAC 445B.346 – Required contents of permit, excluding subsection 

(6). This rule would be new to the Nevada SIP, and it 

identifies conditions that must be contained in class II 

operating permits in addition to the general conditions that 

apply under NAC 445B.315. 

NAC 445B.3465 – Application for revision as amended in section 

23 of Regulation R096-05, adopted by the State Environmental 

Commission on October 4, 2005. This rule would be new to the 

Nevada SIP, and it authorizes revisions to class II operating 

permits and establishes content requirements for applications 

for such revisions. 

NAC 445B.3473 – Renewal of permit. Existing SIP rule: NAC 

445.713, submitted on October 26, 1982 and approved on March 

27, 1984 (49 FR 11626). This submitted rule provides for 

renewal of operating permits 5 years from the date of issuance 

and establishes the schedule that must be followed for permit 

renewals, identifies the content requirements for applications 

for renewals, and specifies the related fees. As such, this 

submitted rule contains the same types of requirements as the 

corresponding rule in the existing SIP. 

NAC 445B.3477 – Class II general permit. This rule would be new 

to the Nevada SIP, and it authorizes NDEP to issue class II 

general permits covering numerous similar stationary sources. 

This rule allows for challenge to the contents of class II 

general permits but not to the grant or denial of authority to 

operate under a class II general permit. 

 This rule does not identify the requirements for general 

permits, the public participation requirements for issuing such 

permits, nor the criteria by which stationary sources may 

qualify for such a permit. NAC 445B.3477 must be amended 

accordingly. 

Class III Operating Permits (5) – 

NAC 445B.3485 – Application: general requirements, as amended in 

section 17 of Regulation R151-06, adopted by the State 

Environmental Commission on September 6, 2006. Existing SIP 

rule: NAC 445.707 (subsection (1), second sentence), submitted 

on October 26, 1982 and approved on March 27, 1984 (49 FR 

11626), in connection with class III sources. This submitted 

rule allows an owner or operator of a source that meets the 

definition of the term “class III source” in NAC 445B.038 to 

apply for a class III operating permit. Such a permit must be 
39

obtained before commencing construction of a new class III 

stationary source or a modification of an existing class III 

stationary source. 

NAC 445B.3487 – Application: determination of completeness by 

director, as amended in section 18 of Regulation R151-06, 

adopted by the State Environmental Commission on September 6, 

2006. Existing SIP rule: NAC 445.707 [subsection (3)], 

submitted on October 26, 1982 and approved on March 27, 1984 

(49 FR 11626). This submitted rule establishes deadlines for 

review of applications for class III operating permits or 

revisions to class III operating permits. 

NAC 445B.3489 – Required content of permits, as amended in 

section 15 of Regulation R151-06, adopted by the State 

Environmental Commission on September 6, 2006. This rule would 

be new to the Nevada SIP, and it identifies conditions that 

must be contained in class III operating permits in addition to 

the general conditions that apply under NAC 445B.315. 

NAC 445B.3493 – Application for revision. This rule would be new 

to the Nevada SIP, and it authorizes revisions to class III 

operating permits and establishes content requirements for 

applications for such revisions. 

NAC 445B.3497 – Renewal of permits. Existing SIP rule: NAC 

445.713, submitted on October 26, 1982 and approved on March 

27, 1984 (49 FR 11626). This submitted rule provides for 

renewal of operating permits 5 years from the date of issuance 

and establishes the schedule that must be followed for permit 

renewals, identifies the content requirements for applications 

for renewals, and specifies the related fees. As such, the 

submitted provision contains the same types of requirements as 

the corresponding rule in the existing SIP. 

V. EVALUATION OF SUBMITTED RULES

In this section, we present our evaluation of the 

permitting program consisting of the submitted rules discussed 

in section IV above. Based on the evaluation and for the reasons 

provided below, we conclude that permitting program consisting 

of the submitted rules should be disapproved. (For those 

submitted rules that are separable from the rest, our rulespecific evaluations and recommendations are provided in section 

IV, above, and not repeated here.) 
40

A. COMPLIANCE WITH MINIMUM REQUIREMENTS ESTABLISHED IN CAA 

SECTIONS 110(a)(2), 110(l), AND 193

Section 110(a)(2) of the Act establishes specific 

requirements for state implementation plans (SIPs) adopted by 

States under CAA section 110(a)(1) to implement, maintain, and 

enforce the NAAQS within each State. Among these requirements 

are that each plan must include “enforceable emission 

limitations and other control measures, means, or techniques,” 

and must include “a program to provide for the ... regulation of 

the modification and construction of any stationary source 

within the areas covered by the plan as necessary to assure that 

NAAAQS are achieved, including a permit program as required in 

parts C and D of this subchapter.”7

 See CAA section 110(a)(2)(A) 

and (C). 

Discussion: The concept of “enforceability” in CAA section 

110(a)(2)(A) refers to various aspects of a rule, or set of 

rules, including, but not limited to, legal authority, vague or 

ambiguous terms, unlimited discretion, and practical 

considerations of monitoring, compliance, reporting and 

recordkeeping. 

First, we find that NDEP has sufficient legal authority 

under the Nevada Revised Statutes (NRS) to administer and 

enforce the requirements of its permitting program. Many of the 

relevant statutes have recently been updated in the SIP, see 71 

FR 51766 (August 31, 2006), or are the subject of a proposed 

approval, see 71 FR 50875 (August 28, 2006). 

Second, we note that there are several instances where a 

submitted rule relies on other rules or statutory provisions 

that have not been submitted for approval, or on terms that have 

not been defined, but that are needed for unambiguous 

interpretation. We also note several instances where more than 

one version of a rule has been included in a given submittal. 

These include: 

• NAC 445B.287 – Operating permits: general requirements; 

exception; restriction on transfers. This rule exempts 

sources in subsection 2 of that rule from permit revision 

requirements but subsection 2 of NAC 445B.287 was not 

included in the January 12, 2006 SIP revision submittal. 

 

7

 The set of submitted rules addressed in this TSD represents the entire 

regulatory portion of NDEP’s stationary source permitting program as required 

under title I of the CAA except for rules specifically related to permitting 

of new major sources or major modifications under parts C and D (of title I). 
41

• NAC 445B.104 – “Motor vehicle” defined, which cites NRS 

485.050, which contains the actual definition of “motor 

vehicle”; this term is important for the purpose of 

interpreting the term “stationary source” in NAC 445B.187. 

• NAC 445B.179 – “Special mobile equipment” defined, which 

cites NRS 482.123, which contains the actual definition of 

“special mobile equipment”; this term is important for the 

purpose of interpreting the term “stationary source” in NAC 

445B.187. 

• NAC 445B.308 – Prerequisites and conditions for issuance of 

operating permits: environmental evaluation; compliance 

with control strategy; exemption from environmental 

evaluation. NDEP submitted two different versions of this 

rule in the SIP revision submittal dated December 8, 2006 

and must re-submit a single version of the rule or withdraw 

one of the two versions to avoid unnecessary confusion. 

• NAC 445B.311 – Environmental evaluation: Required 

information. Subsection (3) of NAC 445B.311 relies on NAC 

445B.083, which has not been submitted as part of the SIP. 

• NAC 445B.3363 – Operating permit to construct: application. 

NDEP submitted two different versions of this rule in the 

SIP revision submittal dated December 8, 2006 and must resubmit a single version of the rule or withdraw one of the 

two versions to avoid unnecessary confusion. 

• NAC 445B.3364 – Operating permit to construct: review of 

application and determination of completeness by director; 

notice. NDEP submitted two different versions of this rule 

in the SIP revision submittal dated December 8, 2006 and 

must re-submit a single version of the rule or withdraw one 

of the two versions to avoid unnecessary confusion. 

In addition, two submitted provisions are vague or 

ambiguous because of incorrect citations to Federal rules or 

because important terms are not defined and must be amended and 

re-submitted. These provisions include: 

• NAC 445B.069 - “Federally enforceable” defined. This 

provision refers to EPA enforcement pursuant to 40 CFR 

51.160 to 166 or 40 CFR part 70, but 40 CFR 51.160 to 166 

and 40 CFR part 70 are not the basis for EPA enforcement 
42

but rather they are rules establishing requirements for 

States’ pre-construction and operating permit rules. NAC 

445B.069 must be revised to more closely match EPA’s 

definition of the same term in 40 CFR 51.166(b)(17); and 

• NAC 445B.3366 – Operating permit to construct: expiration; 

extension. The term “commence” is used in this rule but is 

not defined in NAC chapter 445B. The word “commenced” is 

defined in NAQR article 1.36, which is being retained in 

the SIP, but this old definition relates only to NSPS. 

Because the term “commenced” is subject to different 

interpretations and the existing SIP definition of the term 

does not apply in the permitting context, the State 

Environmental Commission must adopt a definition of 

“commence” in relation to the construction of sources or 

modifications based on EPA’s definition of “commence” in 40 

CFR 51.166(b)(9) as well as the related definitions for 

“necessary preconstruction approvals or permits,” and 

“begin actual construction” in 40 CFR 51.166(b)(10) and 

(11). 

Third, issues concerning practicable enforceability are 

raised directly by submitted rule NAC 445B.138 (“Potential to 

emit” defined). This rule must be amended to require effective 

limits and also to include criteria under which a limit will be 

deemed to be practicably enforceable (i.e., effective) by NDEP. 

Such criteria could include: 

• a requirement for the source to maintain emissions below a 

threshold or significance level that identifies each 

emission unit(s) contribution to the limit and any 

restrictions, control devices, or control measures 

employed; 

• the compliance determination period (e.g., hourly, daily, 

monthly, but not exceeding a 12-month rolling total 

calculated monthly depending on the compliance method 

used); 

• the method for quantifying emissions and determining 

compliance with the PTE limit; and 

• procedures and criteria for routine verification of 

monitoring data and of compliance, including recordkeeping, 

reporting, and testing in agreement with the method for 

quantifying emissions and determining compliance with the 

PTE limit. 
43

Fourth, the affirmative defense provision included in 

submitted rule NAC 445B.326 (“Operating permits: assertion of 

emergency as affirmative defense to action for noncompliance”) 

is acceptable as applied to permit conditions but is not 

approvable under CAA section 110(a)(2) if applied to technologybased emission limitations approved into the SIP. Because of the 

potential for confusion, NAC 445B.326 should be withdrawn from 

further consideration as part of the Nevada SIP or must be 

revised to clarify that the affirmative defense applies only to 

actions brought for noncompliance of permit conditions and not 

to technology-based emission limitations approved into the SIP. 

Section 110(l) of the CAA states: “Each revision to an 

implementation plan submitted by a State under this chapter 

shall be adopted by such State after reasonable notice and 

public hearing. The Administrator shall not approve a revision 

of a plan if the revision would interfere with any applicable 

requirement concerning attainment and reasonable further 

progress (as defined in section 7501 of this title), or any 

other applicable requirement of this chapter.” 

Discussion: The State has provided sufficient evidence of 

notice and hearing for SEC’s adoption of the permit-related 

rules submitted on January 12, 2006 and evaluated herein. See 

volume II of the February 16, 2005 SIP revision submittal. 

Approval of the submitted set of permitting-related rules and 

supercession of the permitting-related rules in the existing SIP 

would not interfere with attainment of the NAAQS or reasonable 

further progress toward attainment of the NAAQS because the 

rules are essentially administrative and procedural in nature. 

In addition, we are unaware of any reliance by NDEP on the 

continuation of any aspect of the permit-related rules in the 

NDEP portion of the existing Nevada SIP for the purpose of 

continued attainment or maintenance of the NAAQS. 

Section 193 of the CAA states in relevant part: “No control 

requirement in effect, or required to be adopted by an order, 

settlement agreement, or plan in effect before November 15, 

1990, in any area which is a nonattainment area for any air 

pollutant may be modified after November 15, 1990, in any manner 

unless the modification insures equivalent or greater emission 

reductions of such air pollutant.” EPA does not believe that NSR 

programs are control requirements for the purposes of section 

193. See 70 FR 39413, at 39417 (July 8, 2005). However, we 

recognize that, on December 22, 2006, the D.C. Circuit issued a 

decision on South Coast Air Quality Management District v. EPA, 

No. 14-1200, that may lead EPA to modify its interpretation of 
44

“control requirement” for the purposes of CAA section 193. 

Nonetheless, even if NSR were considered a “control 

requirement,” we find that the submitted rule would not have an 

effect on emissions in nonattainment areas because of the 

administrative and procedural nature of the changes that are the 

subject of this review, and because the one provision in the 

existing SIP that relates specifically to nonattainment areas, 

NAQR article 13.1.3(2), would be unaffected by action on the 

submitted rules, i.e., it would remain in the SIP. 

B. COMPLIANCE WITH MINIMUM REQUIREMENTS ESTABLISHED FOR 

STATIONARY SOURCE PERMIT PROGRAMS IN 40 CFR PART 51 

(“REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF 

IMPLEMENTATION PLANS”), SUBPART I (“REVIEW OF NEW SOURCES 

AND MODIFICATIONS”), EXCLUDING 40 CFR 51.165 AND 51.166 

 We review the compliance of the submitted set of rules with 

EPA’s regulations in 40 CFR 51, subpart I, excluding 40 CFR 

51.165 and 51.166, which relate to review and permitting of new 

major sources and major modifications under parts C and D of 

title I of the CAA. 

40 CFR 51.160 – Legally enforceable procedures

(a) Each plan must set forth legally enforceable procedures 

that enable the State or local agency to determine whether the 

construction or modification of a facility, building, structure 

or installation or combination of these will result in (1) a 

violation of applicable portions of the control strategy; or (2) 

interference with attainment or maintenance of a national 

standard in the state in which the proposed source (or 

modification) is located or in a neighboring State. 

Discussion: The requirement set forth in NAC 445B.208 for 

sources to prepare environmental evaluations (EE) represents a 

legally enforceable procedure that enables NDEP to determine 

whether a new or modified source would violate any applicable 

portion of the control strategy or interfere with attainment or 

maintenance of the NAAQS. We note that the EE requirement does 

not provide for an evaluation of the potential for interference 

with respect to the PM2.5 NAAQS because the PM2.5 NAAQS is not 

included in the table of ambient air quality standards in NAC 

445B.22097. However, under our current policies, PM10 may 

properly be used as a surrogate for PM2.5 in meeting NSR 

requirements until technical difficulties related to modeling 

and treatment of precursors, among other issues, is resolved. 

See EPA Memorandum entitled, “Interim Implementation of New 
45

Source Review Requirements for PM-2.5,” from John S. Seitz, 

Office of Air Quality Planning & Standards, dated October 23, 

1997, and EPA Memorandum entitled, “Implementation of New Source 

Review Requirements in PM-2.5 Nonattainment Areas,” from Stephen 

D. Page, Office of Air Quality Planning and Standards, dated 

April 5, 2005. 

Thus, the submitted rules require applicants for air 

quality permits to submit the types of information that allow 

NDEP to make the types of determinations called for in 40 CFR 

51.160. There are, however, deficiencies in certain rules that 

prevent us from concluding that the submitted set of rules 

complies fully with 40 CFR 51.160. There deficiencies are as 

follows: 

• NAC 445B.187 – “Stationary source” defined. NAC 445B.187 

excludes “special mobile equipment” from the definition of 

stationary source with the result that the term may not be 

as inclusive as the phrase “facility, building, structure 

or installation” in 40 CFR 51.160. “Special mobile 

equipment” may include engines and vehicles not considered 

“nonroad” and that must be included in the permitting 

program. See EPA’s General Preamble for the Implementation 

of Title I of the Clean Air Act Amendments of 1990, 57 FR 

13498, at 13555 (April 16, 1992) for a discussion of CAA 

section 302(z) (“stationary source” definition). The State 

Environmental Commission must amend this rule accordingly 

or NDEP must explain how it complies with CAA section 

302(z). 

• NAC 445B.313 – Method for determining heat input: class I 

sources. First, NAC 445B.313 does not identify the 

appropriate method for determining heat input for 

combustion sources. Applicability determinations for 

combustion sources must be based on maximum heat input. The 

method for determining maximum heat input is well 

established and is determined by combining the maximum fuel 

rate, determined by the manufacturer, with the total 

calorific value of the fuel, determined by the latest 

applicable ASTM methods. Second, while ASTM methods are 

appropriate for determining calorific values of fuels, the 

general reference in NAC 445B.313 to appropriate ASTM 

methods in 40 CFR parts 51, 52, 60, and 61 is too vague to 

be enforceable. This rule must be amended accordingly. 

• NAC 445B.331 – Request for change of location of emission 

unit. This submitted rule does not clearly apply only to 
46

changes in location of emission units within the confines 

of an existing stationary source. Relocation of an emission 

unit to a site outside of the source at which it is 

originally permitted should trigger new source review. The 

State Environmental Commission must amend NAC 445B.331 to 

clarify that NAC 445B.331 only provides for changes in 

locations of emission units within the confines of existing 

sources at which the units are located. 

• NAC 445B.3477 – Class II general permit. This submitted 

rule does not identify the requirements for general 

permits, the public participation requirements for issuing 

such permits, nor the criteria by which stationary sources 

may qualify for such a permit. To be approved, the rule 

must be amended accordingly. 

(b) Such procedures must include means by which the State 

or local agency responsible for final decision-making on the 

application for approval to construct or modify will prevent 

such construction or modification if (1) it will result in a 

violation of applicable portions of the control strategy; or (2) 

it will interfere with the attainment or maintenance of a 

national standard. 

Discussion: Submitted rule NAC 445B.308 (“Prerequisites and 

conditions for issuance of operating permits: Environmental 

evaluation; compliance with control strategy; exemption from 

environmental evaluation”) states that NDEP shall not issue an 

operating permit or revision to an operating permit if the EE 

shows, or NDEP determines, that the stationary source would 

prevent attainment and maintenance of the NAAQS or will cause a 

violation of the applicable control strategy contained in the 

approved air quality plan. This submitted rule specifically 

refers to the NAAQS in NAC 445B.22097 as a basis for a denial of 

a permit. This is acceptable. 

(c) The procedures must provide for the submission, by the 

owner of operator of the building, facility, structure, or 

installation to be constructed or modified, of such information 

on (1) the nature and amounts of emissions to be emitted by it 

or emitted by associated mobile sources; (2) the location, 

design, construction, and operation of such facility, building, 

structure, or installation as may be necessary to permit the 

State or local agency to make the determination referred to in 

paragraph (a) of this section. 
47

Discussion: The EE requirement for applications for certain new 

or modified sources provides for the submission of the necessary 

information to allow NDEP to make the determinations referred to 

in 40 CFR 51.160(a). See NAC 445B.311 (“Environmental 

evaluation: Required information”). EEs are required for all 

sources with PTEs greater than 25 tons per year of a criteria 

pollutant or a modification of a source (with a PTE greater than 

25 tons per year) that has a PTE greater than 10 tons per year 

of a criteria pollutant. This is acceptable. 

(d) The procedures must provide that approval of any 

construction or modification must not affect the responsibility 

on the owner or operator to comply with applicable portions of 

the control strategy. 

Discussion: Submitted rule NAC 445B.308 (“Prerequisites and 

conditions for issuance of operating permits: Environmental 

evaluation; compliance with control strategy; exemption from 

environmental evaluation”) satisfies this requirement in 

subsection (9) which states: “Approval and issuance of an 

operating permit or a revision of an operating permit for any 

stationary source does not affect the responsibilities of the 

owner or owners to comply with any other portion of the control 

strategy.” This provision is one of the rules that apply 

generally to operating permits for class I, class II, and class 

III sources. This is acceptable. 

(e) The procedures must identify types and sizes of 

facilities, buildings, structures, or installations which will 

be subject to review under this section. The plan must discuss 

the basis for determining which facilities will be subject to 

review. 

Discussion: Submitted rule NAC 445B.288 (“Operating permits: 

Exemptions from requirements”) exempts certain emission units 

specified in the rule or designated by NDEP as “insignificant 

activities” from permitting. Categories of emissions units that 

are specified as insignificant activities largely mirror the 

historic exemptions that are found in the existing SIP. 

Activities that qualify for designation by NDEP as insignificant 

include emission units with uncontrolled PTEs of less than 2 

tons per year of criteria air pollutants. NAC 445B.288 requires 

that insignificant activities be included in the calculations 

used to determine major source status of stationary sources. All 

stationary sources that are not exempt under NAC 445B.288 are 

required to apply for and obtain an operating permit. The 

limited exemptions provided for in NAC 445B.288 are acceptable. 
48

(f) The procedures must discuss the air quality data and 

the dispersion or other air quality modeling used to meet the 

requirements of this subpart. (1) All applications of air 

quality modeling involved in this subpart shall be based on the 

applicable models, data bases, and other requirements specified 

in appendix W of this part (Guidelines on Air Quality Models). 

(2) Where an air quality model specified in appendix W of this 

part (Guideline on Air Quality Models) is inappropriate, the 

model may be modified or another model substituted. Such a 

modification or substitution of a model may be made on a caseby-case basis or, where appropriate, on a generic basis for a 

specific State program. Written approval of the EPA must be 

obtained for any modification or substitution. In addition, use 

of a modified or substituted model must be subject to notice and 

opportunity for public comment under procedures set forth in 40 

CFR 51.102. 

Discussion: Subsection (4)(a) in submitted rule NAC 445B.311 

(“Environmental evaluation: required information”) requires that 

air quality modeling be based on air quality models, databases, 

and other requirements specified in appendix W but allows NDEP 

to authorize use of a modification or substitution of such a 

model if NDEP determines that the modification or substitution 

is appropriate but does not require NDEP to seek written 

approval from EPA nor does the rule require notice and 

opportunity for public comment. NAC 445B.311 must be revised to 

comply with 40 CFR 51.160(f). 

40 CFR 51.161 – Public availability of information

(a) The legally enforceable procedures in 40 CFR 51.160 

must also require the State or local agency to provide 

opportunity for public comment on information submitted by 

owners and operators. The public information must include the 

agency’s analysis of the effect of construction or modification 

on ambient air quality, including the agency’s proposed approval 

or disapproval. 

Discussion: Generally speaking, the submitted rules provide for 

adequate public participation for new or modified class I 

sources, i.e., major sources, but do not provide for adequate 

public participation for new or modified class II sources. With 

respect to class II sources, NDEP may initiate public notice and 

comment if, after review of an application for a class II 

permit, NDEP determines that the change to the stationary source 

results in a significant change in air quality at any location 
49

where the public is present on a regular basis. See NAC 

445B.3457 (“Application: Determination of completeness by 

Director”), subsection (5). As discussed further below, such a 

provision does not provide well-defined objective criteria for 

determining when public notice is required to meet the 

requirements of 40 CFR 51.161. 

As noted above in connection with 40 CFR 51.160(e), the 

procedures for pre-construction review must identify types and 

sizes of facilities, buildings, structures, or installations 

which will be subject to review, and the SIP revision must 

discuss the basis for determining which facilities will be 

subject to review. States may exempt from review those changes 

that are not environmentally significant, consistent with the de 

minimis exemption criteria set forth in Ala. Power Co. v. 

Costle, 636 F.2d 323, at 360-361 (D.C. Cir. 1979). Given the 

connection between the identification of sources subject to 

review in 40 CFR 51.160(e) and the corresponding public notice 

requirements in 40 CFR 51.161(a), NAC 445B.3457(5) essentially 

treats all class II sources (i.e., sources with potentials to 

emit less than 100 tons/year of any criteria pollutant) as de 

minimis by eliminating public notice for permits for new or 

modified class II sources except at the sole discretion of NDEP. 

NDEP has provided no justification for treating all class II 

sources as de minimis nor do we believe that NDEP could provide 

such a justification. 

EPA does believe, however, that 40 CFR 51.161(a) allows for 

the tailoring of the public participation process for less 

environmentally significant sources and modifications. See, 

generally, 60 FR 45530, at 45548-45549 (August 31, 1995). For 

example, the current approach that allows for NDEP to require 

public notice for certain class II sources at NDEP’s discretion 

could be limited to a subset of class II sources with PTEs below 

emissions thresholds documented by NDEP as de minimis and where 

such a source is not taking a limit, or relying on netting, to 

avoid major source review under PSD or part D. Conversely, under 

this scenario, all class II sources with PTEs greater than de 

minimis emissions thresholds or that rely on limits or netting 

to avoid major source review would be subject to the same public 

notice requirements as class I sources. 

Lastly, we note that NAC 445B.3457, subsection (5) must be 

revised to clearly apply to both new sources and modifications 

(the reference to the “change to the stationary source” might be 

incorrectly interpreted to refer just to modifications). 
50

(b) For the purposes of paragraph (a) of this section, 

opportunity for public comment shall include, as a minimum, (1) 

Availability for public inspection in at least one location in 

the area affected of the information submitted by the owner or 

operator and of the State or local agency’s analysis of the 

effect on air quality; (2) A 30-day period for submittal of 

public comment; and (3) A notice by prominent advertisement in 

the area affected of the location of the source information and 

analysis specified in paragraph (b)(1) of this section. 

(c) Where the 30-day comment period required in paragraph 

(b) of this section would conflict with existing requirements 

for acting on requests for permission to construct or modify, 

the State may submit for approval a comment period which is 

consistent with such existing requirements. 

Discussion: The submitted rules establish the required elements 

for public participation for those sources or modifications for 

which public participation requirements are triggered. For 

instance, NAC 445B.3364(6) provides for public inspection of 

NDEP’s review and preliminary intent to issue or deny an 

operating permit to construct in the air quality region where 

the source is located. NAC 445B.3364(7) provides for notice to 

the public and EPA through various means including publication 

of a prominent advertisement in a newspaper of general 

circulation in the area in which the stationary source is or in 

a state publication designated to give general public notice, 

and establishes a 30-day comment period for submission of 

written comments. This is acceptable. 

(d) A copy of the notice required by paragraph (b) of this 

section must also be sent to the EPA through the appropriate 

Regional Office, and to all other State and local air pollution 

control agencies having jurisdiction in the region in which such 

new or modified installation will be located. The notice also 

must be sent to any other agency in the region having 

responsibility for implementing the procedures required under 

this subpart. For lead, a copy of the notice is required for all 

point sources. The definition of point source for lead is given 

in 40 CFR 51.100(k)(2). 

Discussion: As noted above, the submitted rules, e.g., NAC 

445B.3364(7), provide for a copy of NDEP’s review and 

preliminary intent to issue or deny an operating permit to 

construct to be sent to EPA. However, the rules do not provide 

for notification to the two county agencies with which NDEP 

shares stationary source permitting responsibility, and given 
51

the importance of coordination among these agencies, the 

submitted rules that establish public participation requirements 

must be amended to specifically require that copies of NDEP’s 

review and preliminary intent to issue or deny an operating 

permit be sent to Washoe County Health District for those 

sources proposed to be constructed or modified in Washoe County 

and to the Clark County Department of Air Quality and 

Environmental Management in Clark County. Also, the rules must 

be amended to provide for public participation for sources of 

lead with PTE’s greater than 5 tons per year. See 40 CFR 

51.100(k)(2). 

40 CFR 51.162 – Identification of responsible agency

Each plan must identify the State or local agency which 

will be responsible for meeting the requirements of this subpart 

in each area of the State. Where such responsibility rests with 

an agency other than an air pollution control agency, such 

agency will consult with the appropriate State or local air 

pollution control agency in carrying out the provisions of this 

subpart. 

Discussion: Nevada law identifies the State Department of 

Conservation and Natural Resources (DCNR) as the State agency 

responsible for issuing permits to new or modified sources in 

all areas of the State of Nevada (NDEP is a division within 

DCNR), except within counties whose populations exceed 100,000. 

In such counties, Nevada law provides that the applicable 

permitting agency is the district board of health, county board 

of health or board of county commissioners. See NRS 445B.300 and 

NRS 445B.500, both of which were recently approved on August 31, 

2006 (71 FR 51766). The only two counties in Nevada whose 

populations exceed 100,000 are Washoe County and Clark County, 

both of which have their own air pollution control agencies. 

The only exception to this basic regulatory structure for 

permitting of sources in Nevada relates to certain power plants 

that are subject to State, not county, jurisdiction 

notwithstanding their location within the State. See NRS 

445B.500(5), approved into the SIP as noted above. Thus, the 

Nevada SIP identifies the State or local agency which is 

responsible for meeting the requirements of 40 CFR part 51, 

subpart I, in each area of the State. 
52

40 CFR 51.163 – Administrative procedures

The plan must include the administrative procedures, which 

will be followed in making the determination specified in 

paragraph (a) of 40 CFR 51.160. 

Discussion: The submitted rules provide adequate administrative 

procedures to be followed by NDEP in making the determinations 

specified in 40 CFR 51.160(a), including application 

requirements, and specifically, requirements for environmental 

evaluations, as well as completeness determinations, preliminary 

findings, public participation (except as discussed above in 

connection with class II sources), and considerations in the 

final decision to issue or deny a permit. See NAC 445B.295 – 

Application: General requirements; NAC 445B.311 – Environmental 

evaluation: Required information; NAC 445B.3363 – Operating 

permit to construct: Application; NAC 445B.3364 – Operating 

permit to construct: Review of application and determination of 

completeness by director; notice; NAC 445B.3395 – Review of 

application and determination of completeness by director; 

notice; expiration of permit; and NAC 445B.3457 – Application: 

Determination of completeness by Director. 

40 CFR 51.164 – Stack height procedures

Such procedures must provide that the degree of emission 

limitation required of any source for control of any air 

pollutant must not be affected by so much of any source’s stack 

height that exceeds good engineering practice or by any other 

dispersion technique, except as provided in 40 CFR 51.118(b). 

Such procedures must provide that before a State issues a permit 

to a source based on a good engineering practice stack height 

that exceeds the height allowed by 40 CFR 51.100(ii)(1) or (2), 

the State must notify the public of the availability of the 

demonstration study and must provide opportunity for public 

hearing on it. This section does not require such procedures to 

restrict in any manner the actual stack height of any source. 

Discussion: The submitted rules include the necessary 

definitions of such terms as “good engineering practice stack 

height” and “dispersion technique,” the necessary public 

participation where “good engineering practice stack height” 

would exceed those otherwise defined as such, and the necessary 

prohibition is included in subsection (3) of NAC 445B.308. 

However, the prohibition contained in subsection (3) of NAC 

445B.308 includes director’s discretion (... if “the Director 
53

determines” ... ), which must be removed in order for EPA to 

approve this provision as satisfying 40 CFR 51.164. 

C. OTHER ISSUES

 In this subsection, we discuss issues in individual rules 

that do not prevent us from approving the SIP revision submittal 

per se but for which we recommend clarification or minor 

amendment. 

• NAC 445B.036 – “Class I source” defined. We recommend that 

this definition be amended to clarify that the term “class 

I” source includes any physical change that would occur at 

a non-major source if the change would constitute a “major 

stationary source” by itself. See 40 CFR 

51.166(b)(1)(i)(c).

 

• NAC 445B.038 – “Class III source” defined. This submitted 

definition does not allow sources which are subject to the 

requirements of 40 CFR parts 60 (i.e., new source 

performance standards) or 61 [i.e., National Emission 

Standards for Hazardous Air Pollutants (NESHAP)] to qualify 

as “class III” sources. The definition should be amended so 

that sources subject to 40 CFR part 63 (i.e., NESHAP for 

source categories) would also be ineligible for “class III” 

status.

• Sec. 4 of R096-05 – “Good engineering practice stack 

height” defined. This submitted definition differs from 

EPA’s definition by replacing the phrase “stacks in 

existence before January 12, 1979” with the phrase “stacks 

that commenced construction on or before January 12, 1979.” 

While we do not find this difference to be significant, we 

recommend that NDEP fix this minor deficiency when the rule 

is next amended. 

• Unlike most of the adopted definitions that rely on 40 CFR 

52.21, the definitions in NAC 445B.093, 445B.0945, 

445B.1345, and 445B.142 refer only to 40 CFR 52.21 and do 

not specify 40 CFR 52.21 as incorporated by reference in 

NAC 445B.221. We recommend that the State Environmental 

Commission amend these definitions accordingly unless there 

is some reason not to specify the incorporation by 

reference in NAC 445B.221 in these particular definitions. 
54

• NAC 445B.252 - Testing and sampling, excluding paragraphs 

(b) and (c) of subsection (2) and excluding subsection (6).

The submitted rule contains the following editing error: 

the phrase “method of reference” is used in NAC 

445B.252(2)(a) when “reference method” is intended. See NAC 

445B.152 (“Reference method” defined). This minor error 

should be corrected by the State Environmental Commission 

when the rule is next amended. 

• NAC 445B.288 – Operating permits: exemptions from 

requirements; insignificant activities. The submitted rule 

lists the following category of sources, among others, that 

are exempt from the requirement to obtain an operating 

permit: agricultural equipment used in the normal operation 

of a farm, other than agricultural equipment that is 

classified as, or located at, a source for which a permit 

is required under title V of the Act or which is subject to 

any standard set forth in 40 CFR part 60 or 61. The rule 

should be amended to exclude from exemption agricultural 

equipment which is submitted to any standard set forth in 

40 CFR part 63 in addition to 40 CFR parts 60 or 61. 

Second, NAC 445B.288 disqualifies (as an insignificant 

activity) emergency generators owned or operated by a class 

II source and whose potential to emit is calculated on the 

basis of less than 500 hours of operation. We can think of 

no rationale explanation for restricting this limitation to 

class II sources and recommend that the rule be amended to 

extend this limitation to emergency generators at class I 

sources as well. 

• NAC 445B.33637 – Operating permit to construct for approval 

of plantwide applicability limitation: Application. There 

is text missing from subsection (1), paragraph (e): the 

words “shall be” should be inserted between the words 

“limitation” and “based.” 

VI. EVALUATION OF STATE REQUEST TO RESCIND CERTAIN PERMITRELATED RULES AND STATUTES (7) 

Rule 25 of General Order No. 3, Nevada Public Service 

Commission, submitted on October 13, 1980 and approved on April 

13, 1982 (47 FR 15790). Our April 13, 1982 final rule indicates 

that this rule and the related statutory provisions (Utility 

Environmental Protection Act, discussed below) were submitted 

to satisfy one of the conditions of approval for the Las Vegas 

CO and ozone nonattainment plans under part D of the CAAA of 
55

1977. See 46 FR 21758 (April 14, 1981) (“(iii) By August 12, 

1981, the State must submit regulations for the review and 

permitting of fossil fuel-fired electric steam generators.”) 

Specifically, our April 1982 notice indicates that the rule and 

related statutory provisions were submitted to address the 

provisions of section 172(b)(11)(A) of the 1977 Amended Act. 

Section 172(b)(11)(A) requires that, for areas (like Las Vegas 

Valley) that demonstrate the need to extend the attainment date 

for ozone or CO from 1982 to 1987, States establish a program 

which requires, prior to issuance of any permit for 

construction or modification of a major emitting facility, an 

analysis of alternative sites, sizes, production processes, and 

environmental control techniques for such proposed source which 

demonstrates that benefits of the proposed source significantly 

outweigh the environmental and social costs imposed as a result 

of its location, construction, or modification. See, also, our 

proposed rule at 45 FR 59334, at 59338 (September 9, 1980). 

NDEP indicates that this regulation was a temporary regulation 

that expired by operation of law on August 1, 1983, but the 

Federal Register notice cited above does not indicate that it 

is a temporary regulation nor does this temporal limitation 

appear on the face of the rule itself. RECOMMENDATION: DEFER TO 

FUTURE RULEMAKING ON NONATTAINMENT NSR RULES.

Article 1.60 – Effective date, submitted on December 29, 1978, 

and approved on August 27, 1981 (46 FR 43141). NAQR article 

1.60 defines “effective date” as “upon the filing of the 

regulations with the Secretary of State, or as specified in the 

exceptions contained in NRS 233B.070.” Article 1.60 is relied 

upon in the definition of “existing source” in article 1.73 and 

the definition of “new source” in article 1.114, and because 

articles 1.73 and 1.114 are being retained in the SIP, article 

1.60 should also be retained. RECOMMENDATION: DISAPPROVE 

REQUEST FOR RESCISSION.

Article 1.72 – Existing facility, submitted on December 10, 1976 

and approved on August 21, 1978 (43 FR 36932). NAQR article 

1.72 defines “existing facility” in the same way as EPA does in 

40 CFR 60.2. Article 1.72 is relied upon in the definition of 

“major stationary source” in article 1.104, in the definition 

of “modification” in article 1.109, in the definition of 

“stationary source” in article 1.187, and the notification 

requirements for modifications in article 2.16.1.4. In this 

TSD, we are recommending disapproval of the amended stationary 

source permitting program, and if we finalize a disapproval of 
56

the program, article 1.72 will be needed to provide meaning to 

articles 1.104, 1.109, 1.187, and 2.16.1.4. RECOMMENDATION: 

DISAPPROVE REQUEST FOR RESCISSION.

Article 13.1.3(3) – [Minor source BACT], submitted on March 17, 

1980 and approved on April 14, 1981 (46 FR 21758). This 

existing SIP rule prohibits NDEP from issuing a registration 

certificate to a point source if the source is located in an 

attainment area and BACT is not determined and adopted as an 

emission limitation for the source. 

At the time of adoption by the State of article 13.1.3(3), the 

State defined BACT (in NAQR article 1) as applying to sources 

subject to the environmental evaluation (EE) requirement in 

article 13. The Governor of Nevada submitted this definition of 

BACT as section 1 of the amendments to article 1 as part of a 

SIP revision submittal dated July 24, 1979, but EPA never took 

action to approve or disapprove section 1 of the amendments to 

article 1. In contrast, EPA approved the definition of “lowest 

achievable emission rate” (LAER), which was also submitted on 

July 24, 1979 and which also refers to the EE requirement, as a 

revision to the Nevada SIP. See 46 FR 21758 (April 14, 1981). 

In EPA’s 1981 final rule, we referred to the LAER definition as 

“Article 1 – Definition: No. 2 - LAER”). On July 24, 1979, 

Nevada also submitted revisions to Article 13 that amended the 

EE threshold level from 50 pounds per hour (approximately 220 

tons per year) to 23 pounds per hour (100 tons per year). We 

approved the lower threshold for the EE requirement on June 23, 

1982 (47 FR 27070). 

Our 1982 approval of the lower EE requirement automatically 

lowered the SIP threshold for application of the LAER 

requirement (to 100 tons per year) as well, but by not acting 

on the BACT definition (as submitted on July 24, 1979), the 

existing SIP would appear not to establish an emissions 

threshold for application of the BACT requirement and thus to 

require BACT for all new sources and modifications proposed in 

an attainment area regardless of potential to emit (PTE). 

However, given that such a partial approval is inconsistent 

with the notion that partial approvals should relate to 

logically separable portions of a given submittal, we will 

treat the BACT requirement in article 13.1.3(3) for the 

purposes of the analysis herein as if it applies only to 

sources that are 100 tons per year or larger. See Bethlehem 

Steel Corp. v. Gorsuch, 742 F.2d 1028 (7th Cir. 1984)(holding 

the CAA’s partial approval provision did not allow EPA to make 

a SIP stricter). 
57

First, we note that BACT is not required under CAA section 110 

or EPA’s SIP regulations for a new source or modification (in 

attainment areas) that is not considered a “major stationary 

source” or a “major modification” as defined under EPA’s 

prevention of significant deterioration (PSD) regulations such 

as those promulgated at 40 CFR 52.21.8

 The major stationary 

source threshold under EPA’s PSD regulations is generally 250 

tons per year or more of any regulated air pollutant (not 

including nonattainment pollutants to which other regulations 

apply) but a lower threshold (100 tons per year) is established 

for certain categories of new sources. Thus, the State’s 

adoption of a BACT requirement in the SIP for all new sources 

with PTE of 100 tons per year or more was more stringent than 

required. 

Second, rescission of article 13.1.3(3) would not eliminate 

BACT limits already established in permits for existing sources 

but would only have a prospective effect. 

Third, acting prospectively, rescission of article 13.1.3(3) 

would not eliminate the BACT requirement for all new sources in 

attainment areas under NDEP jurisdiction, but only those new 

sources with PTEs greater than 100 tons per year, and less than 

250 tons per year, which are not among the 28 specific 

categories listed in 40 CFR 52.21(b)(1). The major stationary 

source threshold for sources among the 28 specific categories 

listed in 40 CFR 52.21(b)(1) is 100 tons per year. Thus, many 

of the larger stationary sources and modifications would 

continue to be subject to the BACT requirement. For sources 

that otherwise would have been required to meet the BACT 

requirement under NAQR 13.1.3(3) but are not subject to 40 CFR 

52.21, rescission of NAQR article 13.1.3(3) would eliminate the 

BACT requirement. Such sources would, however, continue to be 

subject to other SIP limits, NSPS, or MACT standards, as 

applicable. 

Lastly, we find no evidence that NDEP is relying on the BACT 

requirement in NAQR article 13.1.3(3) to maintain the NAAQS in 

any area, and recognize that, under the CAA, States are to play 

 

8 We note that 40 CFR 52.21 has been made a part of the Nevada SIP except 

for that portion applicable to the Clark County Department of Air Quality and 

Environmental Management. See 40 CFR 52.1485. EPA has delegated (in part) 

authority to NDEP to administer the PSD permitting program (set forth in 40 

CFR 52.21). See 68 FR 52837 (September 8, 2003). Thus, NDEP and EPA share 

responsibility for pre-construction review of new major sources or major 

modifications under 40 CFR 52.21. 
58

the primary role in pollution control and that States retain 

the maximum possible flexibility to balance environmental and 

economic concerns in designing SIPs so long as such plans 

attain and maintain the NAAQS and meet all applicable 

requirements. Rescission of the BACT requirement in NAQR 

article 13.1.3(3) may well result in the consumption of PSD 

increment at a faster rate than otherwise would occur, but the 

NDEP has the ability to account for such effects through PSD 

increment tracking of major sources and modifications and has 

the authority to remedy any increment violation that may occur 

as a result. 

Therefore, in light of the above, we conclude that rescission 

of NAQR article 13.1.3(3) would not interfere with attainment 

or maintenance of the NAAQS or any other applicable requirement 

of the Act, and thus, we may approve the State’s request for 

rescission of this article consistent with CAA section 110(l). 

RECOMMENDATION: APPROVE REQUEST FOR RESCISSION. 

NAC 445.706(2) - Application date: payment of fees, submitted on 

October 26, 1982 and approved on March 27, 1984 (49 FR 11626).

This existing SIP rule establishes that all permit fees must be 

paid to the State of Nevada or the local agency which certified 

issuance of the certificate or permit and are not refundable. 

CAA section 110(a)(2)(L) requires SIPs to require the owner or 

operator of each major stationary source to pay to the 

permitting authority, as a condition of any permit required 

under the Act, a fee sufficient to cover the reasonable costs 

of reviewing and acting upon any application for such a permit, 

and if the owner or operator receives a permit for such source, 

the reasonable costs of implementing and enforcing the terms 

and conditions of any such permit, until such fee requirement 

is superseded with respect to such sources by EPA’s approval of 

a fee program under title V of the Act. EPA approved NDEP’s 

title V program on an interim basis effective on January 11, 

1996 (see 60 FR 63631, December 12, 1995) and then fully 

approved an amended program effective on November 30, 2001 (see 

66 FR 63188, December 5, 2001). NDEP’s title V program includes 

a fee program (in NAC 445B.327) that meets EPA requirements for 

title V programs. Thus, NAC 445.706(2), which is a permit-feerelated rule in an area that has an approved title V program, 

is no longer necessary to meet the requirements of CAA section 

110(k)(2)(L) and may be rescinded. RECOMMENDATION: APPROVE 

REQUEST FOR RESCISSION.

NAC 445.715 - Operation permits: revocation, submitted on 

October 26, 1982 and approved on March 27, 1984 (49 FR 11626). 
59

In subsections (1) and (2), NAC 445.715 allows an operating 

permit to be revoked if the control equipment is not operating, 

or if NDEP determines that there has been a violation of any 

State air pollution regulation, NSPS or NESHAPs. This rule also 

provides that revocation is effective 10 days after service 

unless a hearing is requested (see subsection (3) of the rule) 

and provides for a $100 fee for reissuance (see subsection (4) 

of the rule). 

In substance, the provisions of subsections (1) and (2) of the 

existing SIP rule are contained in submitted rule NAC 445B.325 

(“Operating permits: Termination, reopening and revision, 

revision, or revocation and reissuance”), and the procedural 

protections provided in subsection (3) are generally provided 

in NRS 445B.340, which we have proposed to approve into the 

Nevada SIP (see 71 FR 50875 (August 28, 2006), and the fee 

provision in subsection (4) is no longer necessary [see above 

discussion of NAC 445.706(2) (“Application date: payment of 

fees”)]. However, because this TSD recommends disapproval of 

submitted rule NAC 445B.325, as part of the disapproval of the 

set of rules that comprise NDEP’s stationary source permitting 

program (i.e., excluding parts C and D of title I of the Act), 

we must also recommend that the State’s request for rescission 

of NAC 445.715 be disapproved. Upon eventual approval of NAC 

445B.325, we can approve rescission of NAC 445.715. 

RECOMMENDATION: DISAPPROVE REQUEST FOR RESCISSION.

NRS 704.820 to 704.900 Construction of Utility Facilities: 

Utility Environmental Protection Act, submitted on October 13, 

1980 and approved on April 13, 1982 (47 FR 15790). Our April 

1982 notice indicates that this statutory provision (and Rule 

25 of General Order No. 3, discussed above) were submitted to 

satisfy one of the conditions of approval for the Las Vegas CO 

and ozone nonattainment plans under part D of the CAAA of 1977. 

See 46 FR 21758 (April 14, 1981) (“(iii) By August 12, 1981, 

the State must submit regulations for the review and permitting 

of fossil fuel-fired electric steam generators.”) 

Specifically, our April 1982 notice indicates that the 

statutory provisions and rule were submitted to address the 

provisions of section 172(b)(11)(A) of the 1977 Amended Act. 

Section 172(b)(11)(A) requires that, for areas (like Las Vegas 

Valley) that demonstrate the need to extend the attainment date 

for ozone or CO from 1982 to 1987, States establish a program 

which requires, prior to issuance of any permit for 

construction or modification of a major emitting facility, an 

analysis of alternative sites, sizes, production processes, and 
60

environmental control techniques for such proposed source which 

demonstrates that benefits of the proposed source significant 

outweigh the environmental and social costs imposed as a result 

of its location, construction, or modification. See, also, our 

NPRM at 45 FR 59334, at 59338 (September 9, 1980). 

RECOMMENDATION: DEFER TO FUTURE RULEMAKING ON NONATTAINMENT NSR 

RULES. 

VII. ATTACHMENTS 

A. SUBMITTED NDEP RULES 

B. SIP NDEP RULES