C.F.R. » Title 40 » CHAPTER I—ENVIRONMENTAL PROTECTION AGENCY › SUBCHAPTER C—AIR PROGRAMS › PART 51—REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF IMPLEMENTATION PLANS › Subpart I—Review of New Sources and Modifications

40 C.F.R. § 51.160

Legally enforceable procedures

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(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.

(b) Such procedures must include means by which the State or local agency responsible for final decisionmaking on an 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.

(c) The procedures must provide for the submission, by the owner or 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.

(d) The procedures must provide that approval of any construction or modification must not affect the responsibility to the owner or operator to comply with applicable portions of the control strategy.

(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.

(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 (Guideline 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 case-by-case basis or, where appropriate, on a generic basis for a specific State program. Written approval of the Administrator 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 § 51.102.

[51 FR 40669, Nov. 7, 1986, as amended at 58 FR 38822, July 20, 1993; 60 FR 40468, Aug. 9, 1995; 61 FR 41840, Aug. 12, 1996]
Notes of Decisions
Cited in 13 cases (8 in the last 5 years), 1996–2026 · leading case: United States of America, United States of America, State of Louisiana, Intervenor-Appellee v. Marine Shale Processors,
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United States of America, United States of America, State of Louisiana, Intervenor-Appellee v. Marine Shale Processors, (1996) ca5 · cites it 3× “” 40 C.F.R. §§ 51.160 -.166. Louisiana’s version of this process led LDEQ to issue Permit 1036 M-l, a “preconstruction permit.”
Texas v. United States Environmental Protection Agency (2012) ca5 · cites it 4× “40 C.F.R. § 51.160 . All new or modified pollution sources must receive a pre-construction permit under an approved SIP.”
Conservation Law Foundation v. PSNH (2013) nhd “See 40 C.F.R. § 51.160 . Two distinct programs fall within NSR’s scope.”
United States v. Louisiana Pacific Corp. (1996) cod · cites it 3× “25-7-114 was a “new source review permit” under 40 C.F.R. § 51.160 and not an “operating permit.”
Natural Resources Defense Council, Inc. v. South Coast Air Quality Management District (2010) cacd “, 40 C.F.R. § 51.160 (“each plan must set forth legally enforceable procedures .”
WildEarth Guardians v. N.M. Env't Improvement Bd. (2023) nmctapp · cites it 2× “” 9 40 C.F.R. § 51.160 (a)(2) (2023). “The procedures must discuss the air quality data 10 and the dispersion or other air quality modeling used to meet the requirements of 11 this subpart.”
WildEarth Guardians v. N.M. Env't Improvement Bd. (2023) nmctapp · cites it 2× “” 40 C.F.R. § 51.160 (a)(2) (2023). “The procedures must discuss the air quality data and the dispersion or other air quality modeling used to meet the requirements of this subpart.”
Texas Commission on Environmental Quality and Texas LNG Brownsville, LLC v. Vecinos Para El Bienestar De La Comunidad Co (2023) texapp “See 40 C.F.R. § 51.160 (a)(2) (requiring procedures for determining whether construction or modification of facilities interferes with attainment of NAAQS); Luminant, 675 F.”
City of Fairborn, Ohio v. United States Environmental Protection Agency (2023) ohsd “, 40 C.F.R. § 51.160 (noting that a State’s SIP must provide “means by which the State or local agency responsible for final decisionmaking on an application for approval will prevent” installation of structures with the potential to adversely impact the air (emphasis added));…”
Mojave Desert Air Quality Management District v. United States Environmental Protection Agency, Et A (2024) ca9 “After Mojave amended the rule to clarify that a source’s pre-modification potential to emit must be fully offset, the EPA “found that the rules m[e]t the 3 applicable EPA requirements,” including “sections 172 and 173 of the [Act] and EPA’s NSR’s regulations at 40 CFR 51.160…”
Center for Biological Diversity v. EPA (2025) ca10 “40 C.F.R. § 51.160 (a)–(b). II. Colorado adopts regulations on new stationary sources.”
Center for Biological Diversity v. EPA (2025) ca10 “40 C.F.R. § 51.160 (a)–(b). II. Colorado adopts regulations on new stationary sources.”
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