Pb Infrastructure SIP

Technical Support Document

Evaluation of Nevada Infrastructure SIP for 2008 Lead (Pb) NAAQS

U.S. EPA, Region 9

September 2013
1

Table of Contents

Table of Contents......................................................................................................................... 1

Summary...................................................................................................................................... 1

Background.................................................................................................................................. 3

CAA Section 110(a)(2)(A) – Emission limits and other control measures................................. 4

CAA Section 110(a)(2)(B) – Ambient air quality monitoring/data system................................. 5

CAA Section 110(a)(2)(C) – Program for enforcement of control measures and regulation of new and 

modified stationary sources. ..................................................................................................... 7

CAA Section 110(a)(2)(D) – Interstate transport ...................................................................... 15

CAA Section 110(a)(2)(E) – Adequate resources and authority, conflict of interest, and oversight of 

local governments and regional agencies ............................................................................... 20

CAA Section 110(a)(2)(F) – Stationary source monitoring and reporting................................ 25

CAA Section 110(a)(2)(G) – Emergency episodes ................................................................... 31

CAA Section 110(a)(2)(H) – SIP revisions............................................................................... 33

CAA Section 110(a)(2)(I) – Plan revisions for nonattainment areas......................................... 34

CAA Section 110(a)(2)(J) – Consultation with government officials; public notification; and PSD and 

visibility protection ................................................................................................................. 35

CAA Section 110(a)(2)(K) – Air quality modeling and submission of modeling data ............. 40

CAA Section 110(a)(2)(L) – Permitting fees............................................................................. 44

CAA Section 110(a)(2)(M) – Consultation/participation by affected local entities.................. 46

Summary

This technical support document (TSD) summarizes the U.S. Environmental Protection Agency’s (EPA) 

technical review of revisions to the Nevada State Implementation Plan (SIP) submitted by Nevada 

Division of Environmental Protection (NDEP) on behalf of NDEP, Clark County Department of Air 

Quality (DAQ), and Washoe County Health District Air Quality Management Division (AQMD). These 

revisions pertain to the infrastructure SIP requirements, as per CAA section 110(a)(2), for the 2008 Pb 

national ambient air quality standards (NAAQS). They are as follows:

 October 12, 2011 – “Nevada’s Clean Air Act § 110(a)(1) and (2) State Implementation Plan for 

the 2008 Pb NAAQS,” which includes the NDEP and Washoe County AQMD portions of the 

state’s Pb infrastructure SIP submittal.

 July 23, 2012 – “Clark County Lead Infrastructure State Implementation Plan,” which is the 

Clark County DAQ portion of the state’s Pb infrastructure SIP submittal.

 August 30, 2012 – “Revisions to Nevada’s Clean Air Act § 110(a)(2) State Implementation Plan 

Submittals,” which amended several of the state’s infrastructure SIP submittals, including the 

October 12, 2011 submittal.

Herein, we refer to these submittals collectively as “Nevada’s Pb Infrastructure Submittal.”

Based on our evaluation, we propose a partial approval and partial disapproval of Nevada’s Pb 

Infrastructure Submittal. As discussed further below, we also propose that the partial disapprovals will 

not trigger a deadline for EPA to promulgate a federal implementation plan (FIP) because each given 

deficiency is either already adequately addressed by an existing FIP or EPA is already subject to a 

deadline to promulgate a FIP for that deficiency, with one exception. This proposal, if finalized, will 

trigger the obligation for EPA to promulgate a narrow FIP to cover the PSD increment requirements for 

PM2.5, as explained below. Our evaluation is summarized in the table below.
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Element Identification Evaluation (Meets Requirement?)

Elem.

SubElem. Description NDEP Clark Co. Washoe Co.

A

Emission limits and other 

control measures Yes Yes Yes

B

i

Ambient air quality 

monitoring/data system 

(monitor, compile, analyze data)

Yes Yes Yes

ii

Ambient air quality 

monitoring/data system (make 

data available to EPA)

Yes Yes Yes

C

Program for enforcement of 

control measures and regulation 

of new stationary sources

Partially

(PSD FIP, 

minor NSR)

Partially

(PSD PM2.5

increments and 

PM condensables, 

minor NSR)

Partially

(PSD FIP)

D

i

Interstate transport (prongs 1-2) Yes

Interstate transport (prong 

3/PSD) No

(PSD FIP)

No

(PSD PM2.5

increments and 

PM condensables)

No

(PSD FIP)

Interstate transport (prong 

4/visibility) Yes

ii

Interstate pollution abatement 

(§126, including requirement to 

notify states of potential impacts 

from new sources) and 

international air pollution (§115)

No

(PSD FIP) Yes No(PSD FIP)

E

i

Necessary assurances of 

adequate resources (personnel, 

funding, authority)

Yes Yes Yes

ii

Conflict of interest provisions 

(per § 128) Yes Yes Yes

iii

Necessary assurances of 

adequate oversight of local 

governments and regional 

agencies

Yes n/a n/a

F

i

Stationary source monitoring 

system (installation, 

maintenance, replacement)

Yes Yes Yes

ii

Stationary source monitoring 

system (periodic reports) Yes Yes Yes

iii

Stationary source monitoring 

system (correlation of reports 

with emissions limitations or 

standards)

Yes

No

(FIP deadline 

already set)

Yes

G Emergency episodes Yes Yes Yes

H

i

SIP revisions (plan revisions for 

NAAQS or improved methods 

of attaining)

Yes Yes Yes

ii

SIP revisions (remedy 

inadequacies identified by EPA) Yes Yes Yes
3

I

Plan revisions for nonattainment 

areas n/a n/a n/a

J

§ 121

Consultation with government 

officials Yes Yes Yes

§ 127 Public notification of 

exceedances Yes Yes Yes

PSD/ 

visibility

PSD and visibility protection

No

(PSD FIP)

No

(PSD PM2.5

increments and 

PM condensables)

No

(PSD FIP)

K

i Air quality modeling Yes Yes Yes

ii Submission of modeling data Yes Yes Yes

L

i

Permitting fees (reviewing and 

acting on application) Yes Yes Yes

ii

Permitting fees (implementing 

and enforcing permit) Yes Yes Yes

M

Consultation with/ participation 

by affected local political 

subdivisions

Yes Yes Yes

Background

CAA section 110(a)(1) requires states to submit a plan that provides for the implementation, 

maintenance, and enforcement of the NAAQS no later than three years after the promulgation of a new 

or revised NAAQS. Section 110(a)(2) sets the content requirements of such a plan, which generally 

relate to the information and authorities, compliance assurances, procedural requirements, and control 

measures that constitute the "infrastructure" of a state's air quality management program. A SIP 

submittal addressing these requirements is referred to as an “infrastructure SIP."

On October 15, 2008, EPA issued a revised NAAQS for lead.1This action triggered a requirement for 

states to submit an infrastructure SIP to address the applicable requirements of section 110(a)(2) within 

three years of issuance of the revised NAAQS. In 2011, EPA issued “Guidance on Section 110 

Infrastructure SIPs for the 2008 Pb NAAQS,” referred to herein as EPA’s 2011 Pb Guidance.2

Depending on the timing of a given submittal, some states relied on the earlier draft version of this 

guidance, referred to herein as EPA’s 2011 Draft Pb Guidance.3 EPA issued additional guidance on 

infrastructure SIPs on September 13, 2013.4 

 

1

Final rule signed October 15, 2008. The 1978 Pb standard (1.5 μg/m3 as a quarterly average) was modified to a rolling 3-

month average not to exceed 0.15 μg/m3. The EPA also revised the secondary NAAQS to 0.15 μg/m3and made it identical to 

the revised primary standard. (73 FR 66964, November 12, 2008)

2 Memorandum from Stephen D. Page, Director, Office of Air Quality Planning and Standards, to Regional Air Division 

Directors, Regions 1-10 (October 14, 2011). 

3

“DRAFT Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2008 Lead (Pb) National Ambient 

Air Quality Standards (NAAQS),” June 17, 2011 version.

4

See Memorandum dated September 13, 2013 from Stephen D. Page, Director, EPA Office of Air Quality Planning and 

Standards, to Regional Air Directors, EPA Regions 1-10, “Guidance on Infrastructure State Implementation Plan (SIP) 

Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)” (referred to herein as “2013 Infrastructure SIP Guidance”).
4

We have evaluated Nevada’s Pb Infrastructure Submittal in relation to the infrastructure SIP 

requirements (or “elements”) of CAA section 110(a)(2) and 40 CFR Part 51.

5

In the following pages, we 

describe the requirements, summarize Nevada’s submittal, and present our evaluation for each 

infrastructure SIP element.

CAA Section 110(a)(2)(A) – Emission limits and other control measures

Section 110(a)(2)(A) requires SIPs to “include enforceable emission limitations and other control 

measures, means, or techniques (including economic incentives such as fees, marketable permits, and 

auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary 

or appropriate to meet the applicable requirements of this Act.”

Nevada’s response to this requirement

The NDEP portion of Nevada’s Pb Infrastructure Submittal states that the Nevada SIP includes 

enforceable emission limits and other control measures, means or techniques, schedules for compliance 

and other related matters for Pb via provisions for particulate matter (PM) that are in the Nevada SIP. 

Referring to EPA’s draft Pb infrastructure SIP guidance memo, NDEP notes that Pb comprises a small 

fraction of coarse and fine PM6and cites several SIP-approved provisions, including Nevada 

Administrative Code (NAC) regulations and Nevada Air Quality Regulations (AQR), which limit 

emissions of particulate matter from open burning, fugitive dust, incineration, and other activities.

The Clark County portion of the submittal states that Clark County has adopted enforceable AQRs and 

provides an index of the AQRs, both those that are part of the Nevada SIP and those that are not (i.e., 

“local-only”), in Attachment B of the July 23, 2012 submittal. Specifically for section 110(a)(2)(A), 

Clark County refers to AQRs regarding permitting (including greenhouse gases), excess emissions, 

emissions inventory, continuous monitoring, enforcement programs, and national emission standards for 

hazardous air pollutant (NESHAP) and new source performance standards (NSPS).

The Washoe County portion of the submittal identifies the regulation that authorizes the Control Officer 

of Washoe County AQMD to enforce all SIP-approved measures. It then lists a wide variety of 

enforceable regulations for source registration and operation and for emissions limitations for activities 

such as gasoline handling and storage, but without specifying what specific measures limit the emission 

of Pb.

EPA’s evaluation

The three portions of Nevada’s Pb Infrastructure Submittal take three different approaches to addressing 

the requirements of CAA section 110(a)(2)(A). NDEP notes that Pb is a small fraction of PM and 

identifies several SIP-approved regulations that limit the emission of PM, such as those for open burning 

(e.g., NAC 445B.22067) and incineration (e.g., NAC 445B.2207).7The Clark County portion of the 

 

5 Two section 110(a)(2) requirements are considered by EPA to be outside the scope of infrastructure SIP actions because 

they pertain to plan requirements for nonattainment areas: (1) section 110(a)(2)(C) to the extent it refers to permit programs 

under part D; and (2) section 110(a)(2)(I) in its entirety. Therefore, this TSD does not address these requirements.

6 NDEP references page 15 of EPA’s 2011 Draft Pb Guidance. While NDEP’s note that Pb comprises a small fraction of 

coarse and fine PM may be relevant for section 110(a)(2)(A), the reference is taken from the draft guidance language on 

section 110(a)(2)(D), regarding interstate transport of air pollution, wherein the context was to underscore that Pb comprises 

a small fraction of particulates that would therefore not be transported significant distances or in significant quantities as PM.

7 The NDEP portion of Nevada’s Pb Infrastructure Submittal also cites two SIP-approved regulations for PM emission limits 

on ore processing: NAC 445.808 (barite ore processing) and NAC 445.816 (precious metal processing). However, these 

regulations were repealed at the State level in 1991 and are therefore not part of our analysis for this element.

http://www.leg.state.nv.us/NAC/NACRepealed_Replaced.html
5

submittal primarily refers to its permit program, which regulates the emission of Pb. Washoe County 

cites its authority to adopt emission limits and a broad array of adopted emission regulations, without 

providing the context of those regulations to Pb.

Similar to NDEP, Clark and Washoe Counties have SIP-approved regulations that limit PM emissions 

[e.g., Clark County Sections 28 and 42 (burning), 41 and 90 thru 94 (fugitive dust), and 30 (incineration) 

and Washoe County AQR 040.035 (open fires), 040.030 (dust control), and 040.050 (incineration)]. 

These emission limits demonstrate the state’s authority to adopt such limits for regulated pollutants and, 

to the extent that Pb is present in the fuel, fugitive dust, waste, or other materials, these PM emission 

limits may limit Pb emissions to some small degree. However, Nevada’s Pb Infrastructure Submittal 

does not assess how much these measures might limit the emission of Pb nor whether any such measure 

is necessary or appropriate to attain or maintain the 2008 Pb NAAQS, as per CAA section 110(a)(2)(A).

Beyond the contents of Nevada’s Pb Infrastructure Submittal for CAA section 110(a)(2)(A), each 

portion of the submittal also notes the absence of sources emitting over 0.5 tons per year (tpy) of Pb.8

We reviewed the 2008 National Emissions Inventory (NEI) for the State of Nevada (i.e., all three air 

quality jurisdictions of the state)9and found this assertion to be accurate with one exception: North Las 

Vegas Airport in Clark County had total emissions of 0.58 tpy of Pb. However, this amount is still 

below the threshold of 1.0 tpy for mandatory source-oriented monitoring for airports, per federal 

regulations at 40 CFR part 58, Appendix D, Section 4.5. Furthermore, the next largest Pb source statewide is McCarran International Airport in Clark County, which had total emissions of 0.27 tpy of Pb –

well below the mandatory monitoring thresholds for airports (1.0 tpy) or stationary sources (0.5 tpy).

Section 110(a)(2)(A) does not establish the required stringency of emission limitations and other control 

measures, means or techniques but only requires that the SIP contain such limitations as “may be 

necessary or appropriate to meet the applicable requirements of [the Act].” In this instance, the relevant 

"applicable requirements" of the Act include the requirements to implement, maintain, and enforce the 

Pb NAAQS under CAA section 110(a)(1). No area of Nevada has been designated nonattainment for the 

2008 Pb NAAQS10 nor does any source emit more than the monitoring threshold rate of 0.5 tpy for 

stationary sources and 1.0 tpy for airports, as discussed above. We reason that these facts, in 

combination with the SIP-approved provisions cited in Nevada’s Pb Infrastructure Submittal, are 

sufficient to meet the requirements of CAA section 110(a)(2)(A) for the 2008 Pb NAAQS. As such, we 

propose to find that the Nevada SIP meets the requirements of section 110(a)(2)(A) for the 2008 Pb 

NAAQS for the entire state.

CAA Section 110(a)(2)(B) – Ambient air quality monitoring/data system

Section 110(a)(2)(B) requires SIPs to “provide for establishment and operation of appropriate devices, 

methods, systems, and procedures necessary to—(i) monitor, compile, and analyze data on ambient air 

quality, and (ii) upon request, make such data available to the Administrator.”

Nevada’s response to this requirement

Nevada’s Pb Infrastructure Submittal asserts that NDEP, Clark County DAQ, and Washoe County 

AQMD operate ambient air quality monitors for several NAAQS as required by federal regulations at 40 

CFR part 58 and that they prepare annual monitoring network reports that are submitted to EPA. The 

 

8

See the following pages of each agency’s portion of Nevada’s Pb Infrastructure Submittal: page 5 of the NDEP portion, 

page 9 of the Clark County portion, and pages 2 and 4 of the Washoe County portion.

9

See the file entitled “2013-08 Nevada Pb Source Data from 2008 NEI Database.xlsx” in the docket for this proposal.

10 76 FR 72097, November 22, 2011. The entire state of Nevada was designated unclassifiable/attainment for the 2008 Pb 

NAAQS.
6

submittal notes that the NDEP and Washoe County AQMD jurisdictions of the state do not have any 

source that emits over 0.5 tpy of Pb or any airport that emits over 1.0 tpy of Pb, and therefore are not 

required to operate a Pb monitor. Clark County DAQ operates one State and Local Air Monitoring 

Station (SLAMS) Pb monitor as part of their participation in the National Core multi-pollutant 

monitoring stations (NCore) network. This monitor is quality controlled and quality assured according to 

EPA requirements.

EPA’s evaluation

State-wide, Nevada is required to operate one population-oriented monitor in Clark County as the 

County is part of the only Core Based Statistical Area (CBSA) with a population greater than 500,000 

and operating an NCore site. See 40 CFR part 58, Appendix D, Section 3(b). No source-oriented 

monitors are required in Nevada as there are no stationary sources emitting more than 0.5 tpy of Pb and 

no airports emitting more than 1.0 tpy of Pb, as per 40 CFR part 58, Appendix D, Section 4.5. Nevada’s 

Pb Infrastructure Submittal is consistent with these requirements and Clark County DAQ operates the 

one required Pb monitor in the state.

On February 28, 2013, EPA approved the most recent annual ambient air monitoring network plans for 

each agency,11 including the following: NDEP 2012 Ambient Air Monitoring Network Plan, Clark 

County DAQ Annual Network Plan Report June 2012, and Washoe County AQMD 2012 Ambient Air 

Monitoring Network Plan. More recently, each agency has also submitted its 2013 annual network plan, 

though EPA response letters to these plans are not due until 120 days after their respective submittal.

While Nevada’s Pb Infrastructure Submittal focused on the implementation of the Pb monitoring 

requirements according to federal regulations, we also reference herein the SIP-approved provisions that 

authorize the state and local agencies in Nevada to monitor air quality, submit data to EPA’s Air Quality 

System (AQS), and provide information on air quality monitoring activities. Per Nevada Revised Statute 

(NRS) 445B.210 (“Powers of Commission”), the Nevada State Environmental Commission (SEC) is 

vested with authority to adopt measures necessary for attainment and maintenance of national standards. 

Similarly, NRS 445B.230 (“Powers and duties of Department”) authorizes the Department of 

Conservation and Natural Resources (DCNR), which manages air quality planning and control 

responsibilities through NDEP, to make determinations and issue orders to implement the purposes of 

the state’s air pollution laws (i.e., NRS 445B.100 thru 445B.640), excluding laws for the control of 

emissions from engines (i.e., NRS 445B.700 thru 445B.845). Pb monitoring is necessary to assess the 

attainment and maintenance status of any CBSA with a population greater than 500,000, and thus falls 

within the construct of the measures and determinations that the SEC and DCNR may undertake to 

secure air quality that protects human health and welfare. In addition, NRS 445B.235 (“Additional 

Powers of Department”) authorizes the DCNR to apply for and receive funds from the federal 

government, which applies to EPA monitoring funds made available to states through CAA section 105.

With respect to Clark and Washoe Counties, under NRS 445B.500 (“Establishment and administration 

of program; contents of program; designation of air pollution control agency of county for purposes of 

federal act; powers and duties of local air pollution control board; notice of public hearings; delegation 

of authority to determine violations and levy administrative penalties; cities and smaller counties; 

regulation of certain electric plants prohibited”), paragraph (1)(c), the applicable district board of health, 

county board of health or board of county commissioners in counties with a population greater than

 

11 See these letters listed by date in the docket for this proposal. Note: There are some limited exceptions explained in our 

approval letters to NDEP, Clark County DAQ, and Washoe County AQMD where EPA took no action. However, we do not 

deem these exceptions to disturb our conclusion that the three Nevada agencies operate an appropriate monitoring network to 

monitor, compile, and analyze ambient air quality for Pb.
7

100,000 is designated as the air pollution control agency of the county for the purposes of state law and 

the CAA insofar as it pertains to local programs. Such agencies are authorized to take all actions

necessary to secure for the county the benefits of the CAA. Also, under NRS section 445B.500(1)(d), all 

of the powers and responsibilities provided for in NRS sections 445B.210, 445B.240 thru 445B.470, 

445B.560, 445B.570, 445B.580, and 445B.640 are binding upon and inure to the benefit of local air 

pollution control authorities within their jurisdiction. Thus, the same types of authorities granted under 

State law to the SEC and the DCNR are extended to the authorized local air pollution control agencies in 

the State of Nevada. This similar monitoring authority is implemented by Clark County Board of County 

Commissioners (BCC) and Washoe County District Board of Health (DBOH), through Clark County 

DAQ and Washoe County AQMD, respectively.

Conclusion

By virtue of establishing and operating the Clark County Pb monitor and providing the requisite data to 

EPA, and as supported by the SIP-approved authorizing provisions outlined above, we propose to find 

that Nevada’s air monitoring programs and data systems meet the requirements of section 110(a)(2)(B) 

for the 2008 Pb NAAQS for the entire state.

CAA Section 110(a)(2)(C) – Program for enforcement of control measures and 

regulation of new and modified stationary sources.

Section 110(a)(2)(C) requires that each SIP “include a program to provide for the enforcement of the 

measures described in section 110(a)(2)(A), and regulation of the modification and construction of any 

stationary source” [i.e., new source review (NSR)] “within the areas covered by the plan as necessary to 

assure that the [NAAQS] are achieved, including a permit program as required in parts C and D of title I 

of the Act.”

With respect to the requirement in section 110(a)(2)(C) to include a program to provide for the 

enforcement of control measures, EPA is evaluating the state’s general enforcement authorities to 

determine whether they provide an adequate infrastructure for SIP enforcement statewide.

With respect to the requirement in section 110(a)(2)(C) to include a program to provide for regulation of 

the modification and construction of stationary sources, EPA is evaluating certain “structural” elements 

of the state’s Prevention of Significant Deterioration (PSD) programs under part C of title I of the CAA

to determine whether these programs are adequate for infrastructure SIP purposes. Specifically, EPA 

recently evaluated the Nevada SIP to determine whether it contained the following required elements of 

a PSD program:12

(1) Provisions identifying NOx as an ozone precursor consistent with the requirements of EPA’s 

Phase 2 implementation rule for the 1997 8-hour ozone NAAQS, 70 FR 71612 (November 29, 

2005) [codified at 40 CFR 51.166(b)(1)(ii), (b)(2)(ii), (b)(23)(i), (b)(49)(i)]; 

(2) Provisions to regulate PM2.5, including condensable PM, and its precursor emissions (sulfur 

dioxide (SO2) in all areas, and NOx and/or VOC as appropriate), consistent with the requirements 

of EPA’s NSR/PSD implementation rule for the 1997 PM2.5 NAAQS, 73 FR 28321 (May 16, 

2008) [codified at 40 CFR 51.166(b)(23)(i), (b)(49)]; and 

(3) Provisions to regulate Greenhouse Gases (GHGs) consistent with EPA’s regulations to 

implement the PSD program for GHGs, including “Prevention of Significant Deterioration and 

Title V Greenhouse Gas Tailoring Rule,” 75 FR 31514 (June 3, 2010) and “Limitation of 

 

12 See our proposed (August 3, 2012, 77 FR 46361) and final rules (October 23, 2012, 77 FR 64737) on Nevada’s 

infrastructure SIPs for the 1997 ozone, 1997 PM2.5, and 2006 PM2.5 NAAQS.
8

Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas 

Emitting-Sources in State Implementation Plans,” 75 FR 82536 (December 30, 2010), as 

applicable.

We concluded in our final rulemaking that the Clark County portion of the state met these requirements 

though its SIP-approved PSD program and that NDEP and Washoe County did not have such SIPapproved PSD programs, but rather they implemented delegated PSD FIPs. The status of these programs 

has not changed since and, therefore, our conclusions with respect to these “structural” elements carry 

forward, with one exception: we inadvertently indicated that Clark County’s PSD program addresses 

PM condensables, which, in fact, we had cited as part of a limited disapproval in a separate notice on 

Clark County’s permit program rules.13

In addition, we are evaluating the Nevada SIP to determine whether the SIP-approved PSD program in 

Clark County contains the following required element of a PSD program:

(4) Provisions to regulate PSD increments consistent with the requirements of EPA’s PSD 

implementation rule for the 1997 PM2.5 and 2006 PM2.5 NAAQS, 75 FR 64864 (October 10, 

2010) [codified at 40 CFR 51.166(c)].

Generally, section 110(a)(2)(C) requires that an infrastructure SIP for the 2008 Pb NAAQS contain SIPapproved PSD, nonattainment NSR, and minor NSR permit programs adequate to implement these 

standards. EPA is assessing the status of Nevada’s minor NSR programs for Pb. However, EPA is not 

evaluating part D nonattainment area requirements (such as the nonattainment NSR program) in this 

proposed action because these SIPs are due on a separate schedule under CAA section 172(b). 

Additionally, EPA is not proposing to approve or disapprove any state rules with regard to the NSR 

Reform requirements. EPA intends to act on SIP submittals that are made for purposes of adopting NSR 

Reform through a separate rulemaking process.

Nevada’s response to this requirement

The NDEP portion of Nevada’s Pb Infrastructure Submittal references a number of NAC regulations for 

compliance and enforcement measures and notes that NDEP has full delegation of the PSD FIP program 

at 40 CFR 52.21. Also, this portion of the submittal refers to the SIP-approved Nevada AQR Article 13 

(“General Provisions for the Review of New Sources”) and states that this provision would be replaced 

by three NACs submitted by NDEP to EPA on January 24, 2011.14

The Clark County portion of the submittal highlights AQR Section 4 (“Control Officer”) as providing 

authority for the Control Officer to enforce all AQRs, including rules for compliance schedules (Section 

10), permit rules for major and minor sources (various sub-sections of Section 12), and rules to address 

hazardous air pollutants (Section 13), New Source Performance Standards (Section 14), excess 

emissions (Section 25), and other emission limitations (Sections 26-28). This portion of the submittal 

also notes that the threshold (i.e., significant level) for major sources of Pb is 0.6 tpy and that the 

 

13 This deficiency was identified in our October 18, 2013 final rule on Clark County’s permit program submittals. See 77 FR 

64039 at 64040.

14 Nevada AQR Article 13 was approved into the Nevada SIP on March 26, 1975 (40 FR 13306) with clarifications on 

January 9, 1978 (43 FR 1341). Certain paragraphs of NAQR Article 13 were removed from the Nevada SIP on September 

27, 2012 (77 FR 59321). In that action, EPA also approved NAC 445B.310 (“Environmental evaluation: Applicable sources 

and other subjects; exemption”) and 445B.311 (“Environmental evaluation: Contents; consideration of good engineering 

practice stack height”), and partially approved NAC 445B.308 (“Prerequisites and conditions for issuance of certain 

operating permits; compliance with applicable state implementation plan”), into the Nevada SIP.
9

County’s PSD regulations were revised to address greenhouse gases. Beyond this authority and related 

permit rule and non-permit rule emission limits, this portion notes that additional local rules are enforced 

by the Control Officer.

The Washoe County portion of the submittal states that Washoe County AQR 020.005 (“Board of 

Health – Powers and Duties”) authorizes the Control Officer to enforce all SIP measures, including a list 

of SIP-approved emission limits also cited for CAA section 110(a)(2)(A). It also notes that Washoe 

County AQMD has full delegation of the PSD FIP program at 40 CFR 52.21. Like the Clark County 

portion of the submittal, the Washoe County portion notes additional Washoe County AQRs that have 

been adopted locally for authority [e.g., 020.020 (“Control Officer – Powers and Duties”)], construction 

of modification of permitted operations (e.g., 030.500 and 030.502 thru 030.508), and operating permits 

(030.095) as supportive of CAA section 110(a)(2)(C).

EPA’s evaluation

1. Program for enforcement of control measures

EPA has evaluated the general enforcement authorities at the state level and those for Clark and Washoe 

counties to determine whether they provide an adequate infrastructure for SIP enforcement statewide. 

While Nevada’s submittals identified a number of enforcement regulations, the underlying authority 

provided by state statute is an important basis for the state and county enforcement programs; we discuss 

it first below.

At the state level, the following statutes provide enforcement authority:

 445B.210 (“Powers of Commission”)(71 FR 51766, August 31, 2006).

 445B.230 (“Powers and duties of Department”) (72 FR 11, January 3, 2007).

 445B.450 (“Notice and order by Director; hearing; alternative procedures”)(72 FR 11, January 3, 

2007).

 445B.460 (“Injunctive relief”)(72 FR 11, January 3, 2007).

 455B.640 (“Levy and disposition of administrative fines; additional remedies available; 

penalty”)(72 FR 11, January 3, 2007).

Nevada has used the authority provided by NRS 445B.210 to adopt specific enforcement regulations, 

such as those cited in the NDEP portion of Nevada’s Pb Infrastructure Submittal, which provide 

enforcement authority for all air pollutants regulated by the state. Such regulations include, as listed in 

the submittal, NAC 445B.225, NAC 445B.227, NAC 445B.229, NAC 445B.250, NAC 445B.252, NAC 

445B.275, and NAC 445B.277.

There are two provisions, however, that do not provide support for Nevada’s program for enforcement 

with respect to CAA section 110(a)(2)(C). First, NAC 445.667, regarding excess emissions (i.e., 

pertaining to SSM), was replaced by NAC 445B.232, which has not yet been approved into the Nevada 

SIP. EPA proposed to rescind NAC 445.667 (per Nevada’s request) from the Nevada SIP via a proposed 

approval of Nevada’s request to rescind this regulation. Secondly, NAC 445.694, regarding emission 

discharge information and record storage, was replaced by NAC 445B.269, which was subsequently 

repealed in 1995. Since neither provision is currently in place, it is not clear how Nevada intended that 

these regulations support the enforcement of the emission limitation regulations cited in Nevada’s Pb 

Infrastructure SIP for section 110(a)(2)(A) for sources under NDEP’s jurisdiction.
10

Notwithstanding these two provisions, on the basis of the other statutory and regulatory provisions 

identified by Nevada, which have been approved into the SIP, we find that Nevada has an adequate 

program for enforcement of its provisions for emission limits at the state level. 

For Clark and Washoe counties, NRS 445B.500 requires local programs to include emission control 

standards that are equivalent or stricter than those at the state level, and to provide adequate enforcement 

of such emission control standards.15 See NRS 445B.500(1)(b). This statute also states that all of the 

powers and responsibilities provided for in NRS sections 445B.210, 445B.240 to 445B.470, inclusive, 

445B.560, 445B.570, 445B.580, and 445B.640 are binding upon and inure to the benefit of local air 

pollution control authorities within their jurisdiction (i.e., Clark County BCC acting through Clark 

County DAQ, and Washoe County DBOH acting through the Washoe County AQMD). Thus, the same 

types of enforcement authorities granted under NRS 445B.210, 445B.450, 445B.460, and 455B.640, as 

identified above, are extended to the authorized local air pollution control agencies in the state of 

Nevada. [For further discussion of legal authority, see our discussion below for CAA section 

110(a)(2)(E)].

In Clark County, SIP rule Section 4 describes the Control Officer’s duties with respect to corrective 

action orders. In addition, NRS 445B.500(3) allows the Clark County BCC (as the local air pollution 

control board for a county whose population is greater than 700,000) to “delegate to an independent 

hearing officer or hearing board its authority to determine violations and levy administrative penalties 

for violations.” The Clark County BCC has delegated certain enforcement authorities to Hearing 

Officers. Specific local rules that provide for a program for enforcement of emissions limitations in the 

Clark County portion of the Nevada SIP include Section 5 ("Interference with Control Officer"), Section 

6 ("Injunctive Relief"), and Section 8 ("Persons Liable for Penalties - Punishment; Defense"). These 

rules suffice for the purposes of CAA section 110(a)(2)(C) for the Clark County portion of the Nevada 

SIP.

In Washoe County, the Control Officer (i.e., the District Health Officer of the Washoe County Health 

District) has been delegated certain permitting and enforcement responsibilities. Washoe County AQR 

020.020 (“Control Officer – Powers and Duties”), cited in the local rules listing for this element in the 

Washoe County portion of Nevada’s Pb Infrastructures SIP, describes the Control Officer’s authorities 

and duties to issue corrective action orders and to request that the DBOH levy administrative fines. The 

rule in the Nevada SIP covering the same authorities as AQR 020.020 is AQR 020.025 (May 14, 2973, 

38 FR 12702). These authorities are further described in the local rule AQR 020.030 (“Notice of 

Violations”); the same authority in the Nevada SIP is found in AQR 020.040 (July 27, 1972, 37 FR 

15086). The Control Officer’s designated agents for these permitting and enforcement responsibilities, 

as provided by local rule AQR 020.020, are the Director and the Branch Chief of the Permits and 

Compliance Branch within Washoe County AQMD. Specific local rules that provide for a program for 

enforcement of emissions limitations in the Washoe County portion of the Nevada SIP include 020.035 

("Violations of Regulations"), 020.045 ("Citation"), 020.050 ("Administrative Fines"), and 020.055 

("Injunctive Relief"). These rules suffice for the purposes of CAA section 110(a)(2)(C) for the Washoe 

County portion of the Nevada SIP.

2. Prevention of Significant Deterioration (PSD) permit program

Area designations by EPA define which areas of the state are subject to PSD requirements under part C 

of title I of the CAA (i.e., unclassifiable/attainment areas), or subject to the nonattainment NSR 

 

15 77 FR 64737 (October 23, 2012).
11

requirements under part D of title I the CAA (i.e., nonattainment areas), with respect to the relevant 

NAAQS. NDEP is responsible for NSR (including nonattainment NSR, PSD, and minor NSR) for 

Nevada, excluding the Clark County and Washoe County portions of the state. Clark County DAQ and 

Washoe County AQMD are responsible for NSR in their respective counties, with the exception of fossil 

fuel-fired steam-generating power plants, for which NDEP is also responsible.16

Effective December 31, 2011, EPA designated the whole state of Nevada as unclassifiable/attainment 

for the 2008 Pb NAAQS.17

NDEP and Washoe County

With respect to the Nevada SIP, EPA has promulgated FIPs to address the PSD program requirements 

under part C of title I of the CAA by incorporating 40 CFR 52.21 into the Nevada SIP, except for Clark 

County (see 40 CFR 52.1485, “Significant deterioration of air quality”).18

As noted in Nevada’s Pb Infrastructure Submittal, EPA fully delegated the implementation of the federal 

PSD programs to NDEP (last revised on November 7, 2012) and to Washoe County (March 13, 2008).

However, until a state adopts and submits a PSD program for EPA approval that applies to all regulated 

NSR pollutants, including GHGs, its SIP is not approvable with respect to CAA section 110(a)(2)(C).

Therefore, with respect to section 110(a)(2)(C), we propose to disapprove the NDEP and Washoe 

County portions of Nevada’s Pb Infrastructure Submittal on the basis that the Nevada SIP does not 

contain adequate provisions to meet the PSD requirements of section 110(a)(2)(C) for the 2008 Pb 

NAAQS for sources under NDEP’s jurisdiction (including fossil fuel-fired steam-generating power 

plants statewide) and sources under Washoe County’s jurisdiction. We note that although the SIP 

remains deficient with respect to PSD requirements in the NDEP and Washoe County portions of the 

SIP, no further action is necessary for these purposes because the Federal PSD program addresses the 

deficiencies in these two areas.

Clark County

In our proposed and final rules on Nevada’s infrastructure SIPs for the 1997 ozone, 1997 PM2.5, and 

2006 PM2.5 NAAQS, we evaluated Clark County’s permit program for certain “structural” PSD 

elements under part C of title I of the CAA and determined that it contained the following:19

(1) Provisions identifying NOx as an ozone precursor, 

(2) Provisions to regulate PM2.5 and its precursor emissions, and

(3) Provisions to regulate Greenhouse Gases (GHGs).

The SIP-approved PSD program in Clark County continues to contain those required elements. 

However, Clark County regulations for PSD under AQR Section 12 do not yet address condensable PM, 

consistent with the requirements of EPA’s NSR/PSD implementation rule for the 1997 PM2.5 NAAQS.20

Furthermore, Clark County has not yet revised its PSD increment provisions (see Clark County AQR 

 

16 With respect to fossil fuel-fired steam-generating power plants, by State law, NDEP retains permitting authority state-wide 

(i.e., including such sources in Clark and Washoe counties). See NRS 445B.500, subsections (5) and (6); 77 FR 64737 

(October 23, 2012).

17 76 FR 72097, November 22, 2011.

18 For more background on PSD-related actions in Nevada, see 47 FR 26620 at 26620, June 21, 1982 and as amended by 48 

FR 28271, June 21, 1983; 68 FR 11323, March 10, 2003; and 68 FR 74489, December 24, 2003.

19 See our proposed (August 3, 2012, 77 FR 46361) and final rules (October 23, 2012, 77 FR 64737) on Nevada’s 

infrastructure SIPs for the 1997 ozone, 1997 PM2.5, and 2006 PM2.5 NAAQS.

20 This deficiency was identified in our October 18, 2013 final rule on Clark County’s permit program submittals. See 77 FR 

64039 at 64040.
12

Section 12.2.3) such that new and major sources of PM2.5 estimate significant deterioration of ambient 

air quality for PM2.5 consistent with the increment requirements of EPA’s 2010 PSD implementation 

rule for the 1997 PM2.5 and 2006 PM2.5 NAAQS.21

Because Clark County’s SIP-approved PSD program does not address these “structural” elements under 

part C of title I of the CAA and 40 CFR 51.166(b)(49) and 40 CFR 51.166(c), we propose to disapprove 

the Clark County portion of Nevada’s Pb Infrastructure Submittal on the basis that the Nevada SIP does 

not meet the PSD-related requirements of CAA section 110(a)(2)(C) in Clark County. 

As a result of EPA’s October 18, 2012 limited disapproval of Clark County’s PSD program with respect 

to the requirements regarding condensable particular matter (77 FR 64039), EPA is already obligated to 

promulgate a FIP to address this deficiency no later than two years from the effective date of that action, 

i.e., by November 19, 2014. This FIP obligation remains unchanged.22 Since that time, the July 20, 

2012 deadline for submitting adopted PM2.5 increments consistent with EPA’s requirements in 40 CFR 

51.166(c) has passed (see 75 FR 64864 at 64898), and Clark County’s PSD program is now deficient 

with respect to this requirement as well. Thus, we propose to disapprove the Clark County portion of 

Nevada’s Pb Infrastructure Submittal on the basis of these two PSD program deficiencies. If finalized, 

this proposed disapproval would require EPA to promulgate a narrow FIP establishing PM2.5 increments 

consistent with the requirements of 40 CFR 51.166(c) in Clark County, unless Nevada submits and EPA 

approves PSD provisions that correct this narrow deficiency within two years after the effective date of 

such final action.

3. Minor NSR permit program

As discussed in EPA’s 2011 Pb Guidance,23 we interpret section 110(a)(2)(C) as requiring SIPs to 

include a program for the regulation of new and modified minor sources and minor modifications of 

major sources, herein referred to as “minor NSR.” It also encourages states, in their infrastructure SIP 

submittals, to identify their existing SIP-approved provisions governing minor NSR that regulate 

emissions of the relevant pollutant. Given that Nevada’s Infrastructure SIP Submittal was submitted 

prior to issuance of the guidance, it did not explicitly address minor NSR for the 2008 Pb NAAQS. 

However, the NDEP portion of the submittal references NDEP’s separate permit program submittal of 

January 24, 2011, which focused on minor NSR, and noted that “Nevada’s Pb Infrastructure SIP would

better address the CAA requirement if NDEP’s permitting program update were approved.”24 Also, the 

Clark County portion of the submittal refers to a list of rules that had been submitted separately for 

 

21 See 75 FR 64864 (October 10, 2010), which set a deadline of July 20, 2012 for SIP revisions to incorporate the final PSD 

increments for PM2.5 (see page 64898). In addition, this rule set requirements for significant impact levels (SILs) and 

significant monitoring concentrations (SMCs) for PM2.5. However, as a result of litigation, on January 22, 2013, the D.C. 

Circuit Court granted a request from EPA to vacate and remand the SIL provisions of this rule and to vacate the SMC 

provisions of this rule. Sierra Club v. EPA, No. 10-1413, Decided January 22, 2013, U.S. Court of Appeals for the District of 

Columbia Circuit (D.C. Cir. 2013). As such we did not evaluate the SIP-approved PSD program in Clark County for SILs 

and SMCs for purposes of CAA section 110(a)(2)(C) as part of this proposal.

22 Today’s proposal, if finalized, would not trigger an additional FIP obligation with respect to the PSD requirements 

regarding condensable PM, as no purpose would be served by triggering duplicative FIP obligations based on the same 

identified SIP deficiency. Substantively, we anticipate that SIP revisions adequately addressing the requirements regarding 

condensable PM, among other PSD program corrections, will be submitted and approved prior to expiration of the 2-year FIP 

deadline triggered by our October 18, 2012 limited disapproval of the program (77 FR 64039). Such an approval would also 

adequately address the disapproval of the Clark County portion of Nevada’s Pb Infrastructure Submittal based on this 

deficiency. 

23 Pages 6-7.

24 Nevada’s October 12, 2011 submittal, footnote #1.
13

incorporation into the Nevada SIP in February 2010, including minor NSR rules under Section 12.1 

(“Permit Requirements for Minor Sources”).25

In 2012, EPA finalized actions on Nevada’s and Clark County’s amended minor NSR rules, and our 

actions on those rules have informed our evaluation of the Nevada Infrastructure SIP Submittal with 

respect to minor source NSR for the 2008 Pb NAAQS under CAA section 110(a)(2)(C) for those 

sources subject to NDEP and Clark County jurisdiction, as described further below. With respect to 

minor source NSR for sources under the jurisdiction of Washoe County Health District, we have 

evaluated the Nevada Infrastructure SIP Submittal for compliance with CAA section 110(a)(2)(C) 

through a review of the long-standing NSR rules in the Washoe County Health District portion of the 

Nevada SIP.

NDEP

The minor NSR program in the Nevada SIP for sources under NDEP jurisdiction addresses the former 

Pb NAAQS, but not the current one.26 More specifically, NAC 445B.308 (“Prerequisites and conditions 

for issuance of operating permit: Environmental evaluation; compliance with control strategy; 

exemption from environmental evaluation”), paragraph 2, prohibits NDEP from issuing a permit to 

construct to any stationary source if the source “will prevent the attainment and maintenance of the state 

or national ambient air quality standards. For the purposes of this paragraph, only those ambient air 

quality standards that have been established in NAC 445B.22097 need to be considered ....” NAC 

445B.22097 (“Standards of quality for ambient air”), in turn, contains a table that lists an ambient air 

quality standard for Pb of 1.5 μg/m3based on a quarterly arithmetic mean for both the Nevada and 

National standards. However, in 2008 EPA revised the Pb NAAQS to a more stringent level and a 

different averaging period.27 In our 2012 proposal on NDEP’s permit program submittal, we found that 

“the submitted NSR rules do not address the new rolling 3-month average Pb NAAQS (0.15 μg/m3) and 

thus concluded that we cannot now fully approve the submitted NSR rules.”28

As such, we cannot rely on NDEP’s existing minor NSR program to ensure that new and modified 

sources not captured by the major NSR permitting programs do not interfere with attainment and 

maintenance of the 2008 Pb NAAQS. Accordingly, with respect to section 110(a)(2)(C), we propose to 

find that the Nevada SIP does not to meet the minor NSR program requirements for sources under 

NDEP’s jurisdiction for the 2008 Pb NAAQS.

Clark County

The minor NSR program in the Nevada SIP for sources under Clark County jurisdiction addresses Pb 

specifically but only provides protection against violation of the former Pb NAAQS, not the current 

one.29 More specifically, under Clark County AQR Section 12.1.1(c) and (g), any new Pb source with a 

potential to emit (PTE) equal to or greater than 0.3 tons per year, or any modification of a source 

resulting in an increase in the PTE of Pb equal to or greater than 0.6 tons per year, is subject to NSR 

permitting requirements. Also, Section 12.1.4.1 requires minor NSR permits to include “(c) [e]mission 

limitations for any source or emission unit that ensure: (1) The ambient air quality standards will be 

attained or maintained.” As described in the TSD to our July 24, 2012 proposed rule30 on Clark 

County’s permit program, “[t]The term ‘ambient air quality standards’ in subsection 12.1.4.1(c) appears 

 

25 Nevada’s July 23, 2012 submittal, page 5.

26 77 FR 59321, September 27, 2012.

27 73 FR 66964, November 12, 2008.

28 77 FR 59321 at 59325-59326, September 27, 2012.

29 77 FR 64039, October 18, 2012.

30 77 FR 43206.
14

to be in reference to Clark’s ambient air quality standards in Section 11, which are not entirely 

consistent with the NAAQS” in that they do not include the 2008 Pb NAAQS.31 In our October 18, 2012 

final rule, we finalized a limited disapproval of Clark County’s permit program submittal that requires 

Clark County to revise Section 12.1 to address the requirements of 40 CFR 51.160-164 with respect to 

the 2008 Pb NAAQS.32

So, as with NDEP, we cannot rely on Clark County’s existing minor NSR program to ensure that new 

and modified sources not captured by the major NSR permitting programs do not interfere with 

attainment and maintenance of the 2008 Pb NAAQS. Accordingly, with respect to section 110(a)(2)(C), 

we propose to find that the Nevada SIP does not to meet the minor NSR program requirements for 

sources under Clark County’s jurisdiction for the 2008 Pb NAAQS.

Washoe County

Although EPA has taken no action on the minor NSR program in the Nevada SIP for sources under 

Washoe County Health District jurisdiction in many years, the District’s SIP-approved minor NSR 

program adequately addresses the current Pb NAAQS, as explained below. The SIP-approved Washoe 

County AQR 030.010 (“General Sources”) states that the Control Officer shall not issue an Authority to 

Construct if the relevant documents show, or if the Control Officer determines, “that the source:... (B) 

[w]ill prevent the attainment or maintenance of State or National Ambient Air Standards.”33 In 1983, the 

Washoe County Health District prepared a Pb SIP and cited AQR 030.010 as requiring the Control 

Officer to deny any permits to build and /or operate a source, regardless of size, if that source will 

prevent the attainment or maintenance of any NAAQS. The Health District concluded that since there is 

a NAAQS associated with Pb then all such Pb-emitting sources will come under the purview of section 

030.010 and will require review and approval prior to construction. EPA approved the 1983 Pb SIP in 

1984 at 49 FR 26736 (June 29, 1984).

The Washoe County Health District interprets the reference in Rule 030.010 to “National Ambient Air 

Standards” as a reference to the current NAAQS,34 and thus the conclusion drawn by the Health District 

with respect to the original Pb NAAQS in 1983 continues to apply to the 2008 Pb NAAQS. That is, 

implementation of Rule 030.010 would prevent construction and operation of new stationary sources 

that would violate the current Pb NAAQS.

We find the District’s interpretation of its own rule to be reasonable, and thus, we can rely on Washoe 

County’s existing minor NSR program to ensure that new and modified sources not captured by the 

major NSR permitting programs do not interfere with attainment and maintenance of the 2008 Pb 

 

31 “Technical Support Document for EPA’s Notice of Proposed Rulemaking for revisions to the Nevada State 

Implementation Plan, Clark County Department of Air Quality and Environmental Management, New Source Review 

Permitting Program, Including Minor NSR, NSR and PSD programs,” July 11, 2012. Page 12. Also, while Section 11 was 

repealed effective April 19, 2011 (per Clark County’s “Current Rules & Regulations” webpage: 

http://www.clarkcountynv.gov/depts/AirQuality/Pages/Rules_CurrentRulesandRegulations.aspx), it has not been replaced in 

the Nevada SIP since its approval into the SIP on September 7, 2004 (69 FR 54006).

32 77 FR 64309. Note that in this final rule we concluded that the “most significant deficiencies that we identified in the 

submitted NSR rules, as discussed in detail in the TSD, are generally as follows: (1) The absence of minor NSR provisions 

that ensure protection of the 2006 PM2.5 NAAQS and 2008 Lead (Pb) NAAQS.” Page 64040.

33 Washoe County AQR 030.010 was approved into the SIP on April 14, 1981 (46 FR 21758). The current version of this 

rule, available under Section 030.000 at http://www.washoecounty.us/health/air/regulations.html, was most recently amended 

on June 27, 1990. That amendment added an additional paragraph (D) to the regulation, but did not change the condition 

under paragraph (B), as discussed above.

34 Phone conversation between Jeff Wehling, Office of Regional Counsel, EPA Region IX, and Daniel Inouye, Chief of the 

Monitoring and Planning Branch, Washoe County Health District, Air Quality Management Division, dated September 13, 

2013.
15

NAAQS. Accordingly, with respect to section 110(a)(2)(C), we propose to find that the Nevada SIP 

meets the minor NSR program requirements for sources under Washoe County Health District’s 

jurisdiction for the 2008 Pb NAAQS.

Consequences of Disapproval for Section 110(a)(2)(C) for Minor NSR

The proposed disapprovals for section 110(a)(2)(C) with respect to NDEP and Clark County’s minor 

NSR programs, if finalized, will not trigger the obligation for EPA to promulgate a FIP. Normally, such 

disapprovals would trigger FIP obligations under CAA section 110(c)(1). However, in this instance, the 

FIP obligations have already been triggered by EPA’s 2012 actions on the NSR rules submitted for 

sources under NDEP and Clark County jurisdiction. In both instances, EPA took final, limited 

approval/limited disapproval actions, and the limited disapprovals, in part based on the deficiencies in 

the rules with respect to the 2008 Pb NAAQS, triggered the current FIP obligations. Thus, no purpose 

would be served by triggering duplicative FIP obligations based on the same identified SIP deficiencies. 

Substantively, we anticipate that SIP revisions that adequately address the deficiencies identified by 

EPA in the minor NSR rules for sources under NDEP and Clark County jurisdiction with respect to the 

2008 Pb NAAQS to be submitted and approved prior to expiration of the 2-year FIP deadlines triggered 

by our 2012 limited disapproval actions. Such approvals would also serve to adequately address the 

disapproval of Nevada’s Pb Infrastructure SIP with respect to the minor NSR requirements under CAA 

section 110(a)(2)(C) for the 2008 Pb NAAQS for Pb emitting sources under NDEP and Clark County 

jurisdiction.

4. Conclusion

With respect to the requirement in section 110(a)(2)(C) to include a program to provide for the 

enforcement of control measures, EPA is proposing to approve Nevada’s Pb Infrastructure Submittal 

based on our conclusion that the state’s general enforcement authorities provide an adequate 

infrastructure for SIP enforcement statewide.

With respect to the requirement in section 110(a)(2)(C) to include a preconstruction review program for 

major sources (i.e., PSD) under part C of title I, EPA is proposing to disapprove Nevada’s submittal 

since the NDEP and Washoe County portions of the Nevada SIP lack a SIP-approved PSD program and 

since the Clark County’s SIP-approved PSD provisions are deficient with respect to PM condensables 

and PM2.5 increments.

With respect to the requirement in section 110(a)(2)(C) to include a preconstruction review program for 

minor sources (i.e., minor NSR) for the 2008 Pb NAAQS, EPA is proposing to disapprove the NDEP 

and Clark County portions, and approve the Washoe County portion, of Nevada’s Pb Infrastructure 

Submittal.

CAA Section 110(a)(2)(D) – Interstate transport

Section 110(a)(2)(D) of the Act requires that each SIP:

contain adequate provisions—

(i) prohibiting, consistent with the provisions of this title, any source or other type of emissions 

activity within the State from emitting any air pollutant in amounts which will—

(I) contribute significantly to nonattainment in, or interfere with maintenance by, any other 

State with respect to any such national primary or secondary ambient air quality 

standard, or
16

(II) interfere with measures required to be included in the applicable implementation plan 

for any other State under part C to prevent significant deterioration of air quality or to 

protect visibility, and

(ii) insuring compliance with the applicable requirements of sections 126 and 115 (relating to 

interstate and international pollution abatement).

Section 126(a) of the Act requires notification to affected, nearby states of proposed new or modified 

major sources. Sections 126(b) and (c) pertain to petitions by affected states to EPA regarding sources 

violating the “interstate transport” provisions of CAA section 110(a)(2)(D)(i). Section 115 of the Act 

pertains to international transport of air pollution.

Nevada’s response to this requirement

The NDEP portion of Nevada’s Pb Infrastructure Submittal asserts that there are no sources emitting 

greater than 0.5 tpy of Pb within two miles of the state’s border. It reiterates that NDEP has full 

delegation of the federal PSD program, notes that Nevada AQR Article 13 (“General Provisions for the 

Review of New Sources”) requires an environmental evaluation before a registration certificate is 

issued, and states that Article 13 would be replaced by three NAC regulations submitted by NDEP to 

EPA on January 24, 2011. The submittal states that it does not address visibility impacts as those are 

addressed via the federal regional haze program and that, at the time the State was developing the 

Nevada Pb Infrastructure Submittal, EPA had proposed approval of Nevada’s November 18, 2009 

Regional Haze SIP submittal (Nevada’s Regional Haze SIP). In addition, NDEP identifies several 

permit-related NAC regulations that require sources to notify neighbors of air pollution impacts, as 

required by CAA section 126.

The Clark County portion of the submittal similarly asserts that there are no sources in the County 

emitting 0.5 or more tpy of Pb and refers to EPA’s 2011 Pb Guidance, which states that Pb does not 

travel as far or go through the same atmospheric chemical transformation as ozone or PM2.5 and that Pb 

concentrations decrease sharply the larger the distance from the source. This portion of the submittal 

also states that Sections 12.2 (“Permit Requirements for Major Sources in Attainment Areas”) and 12.3 

(“Permit Requirements for Major Sources in Nonattainment Areas”) of Clark County’s permit program 

require an assessment of visibility impairment, and references EPA’s 2011 Pb Guidance to support the 

County’s general conclusion that Pb-related visibility impacts are insignificant.

The Washoe County portion of the submittal states that there are no sources in the County emitting 0.5 

or more tpy of Pb and that Washoe County AQMD has full delegation of the federal PSD program. It 

does not make any statement with respect to visibility.

EPA’s evaluation

The interstate transport requirements of CAA section 110(a)(2)(D) are typically addressed in several 

subparts, or “prongs.” We address each of four prongs under section 110(a)(2)(D)(i), and the 

requirements of section 110(a)(2)(D)(ii), successively below. Our evaluation of Nevada’s Pb 

Infrastructure Submittal is guided primarily by EPA’s 2011 Pb Guidance.

Prongs 1 and 2

CAA section 110(a)(2)(D)(i)(I) requires SIPs to prohibit emissions that will significantly contribute to 

nonattainment of the NAAQS in other states (i.e., “prong 1”) or that will interfere with maintenance of 
17

the NAAQS in other states (i.e., “prong 2”).35 As referenced in Nevada’s Pb Infrastructure Submittal, 

EPA’s 2011 Pb Guidance noted that the physical properties of Pb limit its potential transport relative to 

other air pollutants like ozone and PM2.5.

36 As such, while it may be possible for a source in a state to 

emit Pb in a location and in quantities that may contribute significantly to nonattainment in, or interfere 

with maintenance by, any other state, EPA anticipates that this would be a rare situation, for example, 

where large sources are in close proximity to state boundaries. See EPA’s 2011 Pb Guidance at 8. 

We have reviewed the 2008 NEI for the State of Nevada and verified the assertions in Nevada’s Pb 

Infrastructure Submittal that no sources emitting Pb in amounts greater than 0.5 tpy are in close 

proximity to the state’s borders.37 In fact, the two largest sources of Pb in the state – North Las Vegas 

Airport (0.58 tpy) and McCarran International Airport (0.27 tpy) – are both in Clark County and are 20 

or more miles from the nearest state border (i.e., Arizona) and 200 or more miles from the nearest Pb 

nonattainment area (part of Los Angeles County, California). As a result, the State submittal provides a 

reasonable basis to conclude that sources in Nevada that emit Pb do not contribute significantly to 

nonattainment in, or interfere with maintenance of the Pb NAAQS in any other state. Therefore, we are 

proposing to approve the section 110(a)(2)(D)(i)(I) portion of Nevada’s Pb Infrastructure Submittal as 

meeting the requirements of CAA section 110(a)(2)(D)(i)(I) for the 2008 Pb NAAQS statewide.

Prong 3

CAA section 110(a)(2)(D)(i)(II) requires SIPs to prohibit emissions that will interfere with other states’ 

measures to prevent significant deterioration of air quality (i.e., “prong 3”). This requirement may be 

satisfied by SIP-approved PSD programs that are current with the “structural” PSD requirements for all 

regulated NSR pollutants and GHGs and nonattainment NSR programs covering those NAAQS for 

which the State contains nonattainment areas.

38

For the NDEP and Washoe County portions of the Nevada SIP, as discussed in Nevada’s Pb 

Infrastructure Submittal and our evaluation for CAA section 110(a)(2)(C) above, EPA has promulgated 

PSD FIPs and delegated the implementation of these PSD FIPs to NDEP and Washoe County AQMD. 

While NDEP references its SIP-approved regulations for new and modified sources of air pollution [e.g., 

Nevada AQR Article 13 (“General Provisions for the Review of New Sources”), NAC 445B.310 and 

445B.311 (regarding environmental evaluation), etc], new and modified major sources are subject to the 

delegated PSD FIPs. Furthermore, NDEP does not make the case for why these other provisions alone 

are adequate to prohibit emissions that will interfere with other states’ PSD measures. Therefore, we 

propose to disapprove the NDEP and Washoe County portions of Nevada’s Pb Infrastructure Submittal

on the basis that the Nevada SIP does not contain adequate provisions to meet the PSD requirement of 

section 110(a)(2)(D)(i)(II) for the 2008 Pb NAAQS for sources under NDEP’s or Washoe County’s 

jurisdiction.

 

35 In accordance with the decision of the U.S. Court of Appeals for the District of Columbia, EPA at this time is not treating 

the section 110(a)(2)(D)(i)(I) portion of Nevada’s Pb Infrastructure Submittal as a required SIP submission. See EME Homer 

City Generation, L.P. v. EPA, 696 F .3d 7 (D.C. Cir. 2012), cert. granted, 2013 U.S. Lexis 4801 (2013). On June 24, 2013, 

the Supreme Court granted the petitions of the United States and others and agreed to review the merits of the D.C. Circuit 

decision in EME Homer City during the Court’s 2013 term. Regardless of whether a particular SIP submission is considered 

“required,” however, section 110(k)(2) of the CAA requires EPA to act on the submission.

36 EPA 2011 Pb Guidance, page 8.

37 See the file entitled “2013-08 Nevada Pb Source Data from 2008 NEI Database.xlsx” in the docket for this proposal.

38 See Memorandum from William T. Harnett, Director, OAQPS/AQPD, “Guidance on SIP Elements Required Under 

Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air Quality Standards (NAAQS),” 

September 25, 2009.
18

We note that Washoe County is designated and classified as “serious” nonattainment for the PM-10 

NAAQS (see 40 CFR 81.329).39 Given the PSD-related deficiencies that necessitate disapproval of the 

Washoe County portion of Nevada’s Pb Infrastructure Submittal with respect to the “PSD prong,” we 

need not discuss Washoe County’s nonattainment NSR program.

For Clark County, as discussed above in connection with section 110(a)(2)(C), the SIP-approved PSD 

program in Clark County contains certain “structural” elements, but is missing others for PM2.5. Because 

Clark County’s SIP-approved PSD program does not address the PM condensable and PM2.5 increment 

requirements under part C of title I of the CAA and 40 CFR 51.166(b)(49) and 40 CFR 51.166(c), 

respectively, we propose to disapprove the Clark County portion of Nevada’s Pb Infrastructure 

Submittal on the basis that the Nevada SIP does not meet the PSD-related requirements of CAA section 

110(a)(2)(D)(i)(II) in Clark County. We note that Clark County is designated and classified as “serious” 

nonattainment for PM-10,40 but given the PSD-related deficiencies that necessitate disapproval of the 

submittal with respect to the “PSD prong,” we need not discuss Clark County’s nonattainment NSR 

program.

As a result of EPA’s October 18, 2012 limited disapproval of Clark County’s PSD program with respect 

to the requirements regarding condensable particular matter (77 FR 64039), EPA is already obligated to 

promulgate a FIP to address this deficiency no later than two years from the effective date of that action, 

i.e., by November 19, 2014. This FIP obligation remains unchanged.41 Since that time, the July 20, 

2012 deadline for submitting adopted PM2.5 increments consistent with EPA’s requirements in 40 CFR 

51.166(c) has passed (see 75 FR 64864 at 64898), and Clark County’s PSD program is now deficient 

with respect to this requirement as well. Thus, we propose to disapprove the Clark County portion of 

Nevada’s Pb Infrastructure Submittal on the basis of these two PSD program deficiencies. If finalized, 

this proposed disapproval would require EPA to promulgate a narrow FIP establishing PM2.5 increments 

consistent with the requirements of 40 CFR 51.166(c) in Clark County, unless Nevada submits and EPA 

approves PSD provisions that correct this narrow deficiency within two years after the effective date of 

such final action.

Prong 4

CAA section 110(a)(2)(D)(i)(II) also requires SIPs to prohibit emissions that will interfere with other 

states’ measures to protect visibility (i.e., “prong 4”). In general, this requirement may be satisfied by a 

SIP-approved regional haze program. For Pb in particular, EPA’s 2011 Pb Guidance states that Pb 

generally comprises a small fraction of coarse and fine PM (both of which may affect visibility) and that 

EPA anticipated that Pb emissions would contribute only negligibly to visibility impairment at Class I 

areas.

42

Nevada’s Pb Infrastructure SIP referred to the regional haze program and EPA’s proposed approval of 

Nevada’s Regional Haze SIP43 and to the provisions in Clark County’s permit program that require 

assessment of visibility impairment as part of an environmental review of a new or modified major 

source of air pollution. In the time that has passed since Nevada’s submittal, EPA finalized approval of 

 

39 PM-10 is the only effective NAAQS for which Nevada contains areas currently designated as nonattainment. See 40 CFR 

81.329 (identifying Clark County (Las Vegas area) and Washoe County (Reno area) as “serious” nonattainment for PM-10). 

EPA has, however, determined that both of these areas have attained the PM-10 NAAQS. See 75 FR 45485 (August 3, 2010) 

(determination of attainment for PM-10 for Las Vegas Valley nonattainment area) and 76 FR 21807 (April 19, 2011) 

(determination of attainment for PM-10 for Washoe County nonattainment area).

40 Ibid.

41 See n. 22, supra. 

42 EPA’s 2011 Pb Guidance, page 9.

43 76 FR 36450, June 22, 2011.
19

Nevada’s Regional Haze SIP,44 with the exception of Nevada’s Best Available Retrofit Technology 

(BART) determination for the emission of nitrogen oxides (NOx) at Reid Gardner Generating Station, 

for which we finalized a partial approval and partial disapproval.45 In the latter final rule, we also 

promulgated a federal implementation plan to establish a BART emission limit for NOx at Unit 3 and 

establish a compliance method for all three units of the Reid Gardner Generating Station. Given the 

narrow nature of our disapproval and FIP (i.e., NOx limits at one power plant in the state), for purposes 

of the 2008 Pb NAAQS, we believe the Nevada Regional Haze SIP contains adequate provisions to 

prohibit Pb emissions that will interfere with other states’ measures to protect visibility at Class I areas 

in those other states. Accordingly, we propose to approve Nevada’s Pb Infrastructure Submittal on the 

basis that it meets the visibility “prong” of CAA section 110(a)(2)(D)(i)(II) for the 2008 Pb NAAQS for 

all three jurisdictions.

CAA Section 110(a)(2)(D)(ii)

1. Section 126 (“Interstate pollution abatement”)

With respect to the requirement in CAA section 110(a)(2)(D)(ii) regarding compliance with the 

applicable requirements of section 126 relating to interstate pollution abatement, we note that the 

requirements of section 126(b) and (c), which pertain to petitions by affected states to EPA regarding 

sources violating the “interstate transport” provisions of CAA section 110(a)(2)(D)(i), do not apply to 

our action because there are no such pending petitions relating to Nevada. We thus evaluate Nevada’s 

Pb Infrastructure Submittals only for purposes of compliance with section 126(a).

EPA is proposing to partially approve and partially disapprove Nevada’s Pb Infrastructure SIP

Submittals for purposes of meeting the requirements of CAA section 126(a) regarding notification to 

affected, nearby states of major proposed new or modified sources. Specifically, the SIP-approved Clark 

County AQR Section 12.2 includes a requirement for the permitting agency to send a copy of the 

required public notice to EPA and to “[a]ny state, Federal Land Manager, and Indian governing body 

whose lands may be affected by emissions from the source or modification.” See CCR Section 

12.2.16.2(d). This requirement for notice to nearby states are consistent with EPA’s requirements for 

PSD programs in 40 CFR 51.166(q)(2)(iv).

NDEP and Washoe County AQMD do not have SIP-approved PSD programs. Thus, the Nevada SIP 

remains deficient with respect to the PSD requirements in part C, title I of the Act and with respect to 

the requirement in CAA section 126(a) regarding notification to affected, nearby states of major 

proposed new or modified sources in these two areas. These deficiencies are, however, adequately 

addressed with respect to all regulated NSR pollutants in both areas by the Federal PSD program in 40 

CFR 52.21 and no further action is required. 

For these reasons, we propose to approve the Clark County portion, and to disapprove the NDEP and 

Washoe County’s portions, of Nevada’s Pb Infrastructure Submittal with respect to the requirement in 

CAA section 110(a)(2)(D)(ii) regarding compliance with the applicable requirements of sections 126 

relating to interstate pollution abatement. 

2. Section 115 (“International air pollution”)

 

44 77 FR 17334, March 26, 2012.

45 77 FR 50936, August 23, 2012.
20

CAA section 115 authorizes the Administrator to require a state to revise its SIP when certain criteria 

are met and the Administrator has reason to believe that any air pollutant emitted in the United States 

causes or contributes to air pollution which may reasonably be anticipated to endanger public health or 

welfare in a foreign country. The Administrator may do so by giving formal notification to the Governor 

of the State in which the emissions originate. Because no such formal notification has been made with 

respect to emissions originating in Nevada, EPA has no reason to approve or disapprove any existing 

state rules with regard to CAA section 115. EPA thus concludes that the existing SIP is sufficient to 

satisfy the requirement in CAA section 110(a)(2)(D)(ii) regarding compliance with the applicable 

requirements of section 115.

Conclusion

EPA is proposing to (1) approve Nevada’s Pb Infrastructure Submittal as satisfying the requirements 

concerning interstate transport in CAA section 110(a)(2)(D)(i)(I); (2) disapprove Nevada’s Pb

Infrastructure Submittal with respect to the “PSD prong” of section 110(a)(2)(D)(i)(II); (3) approve

Nevada’s Pb Infrastructure Submittal as satisfying the visibility “prong” of section 110(a)(2)(D)(i)(II); 

and (4) partially approve and partially disapprove Nevada’s Pb Infrastructure Submittal with respect to

the requirement in CAA section 110(a)(2)(D)(ii) to ensure compliance with the applicable requirements 

of section 126 relating to interstate pollution abatement.

CAA Section 110(a)(2)(E) – Adequate resources and authority, conflict of interest, and 

oversight of local governments and regional agencies

Section 110(a)(2)(E) requires SIPs to:

provide (i) necessary assurances that the State (or, except where the Administrator deems 

inappropriate, the general purpose local government or governments, or a regional agency 

designated by the State or general purpose local governments for such purpose) will have 

adequate personnel, funding, and authority under State (and, as appropriate, local) law to carry 

out such implementation plan (and is not prohibited by any provision of Federal or State law 

from carrying out such implementation plan or portion thereof), (ii) requirements that the State 

comply with the requirements respecting State boards under section 128, and (iii) necessary 

assurances that, where the State has relied on a local or regional government, agency, or 

instrumentality for the implementation of any plan provision, the State has responsibility for 

ensuring adequate implementation of such plan provision.

Section 128 requires SIPs to:

contain requirements that (1) any board or body which approves permits or enforcement orders 

under the CAA shall have at least a majority of members who represent the public interest and 

do not derive any significant portion of their income from persons subject to permits or 

enforcement orders under the CAA, and (2) any potential conflicts of interest by members of such 

board or body or the head of an executive agency with similar powers be adequately disclosed.

Related EPA Regulations

Subpart L (“Legal Authority”) of 40 CFR Part 51 specifies SIP requirements related to CAA section 

110(a)(2)(E)(i) and (iii). Subpart L includes three rules: 40 CFR 51.230 (“Requirements for all plans”), 

51.231 (“Identification of legal authority”), and 51.232 (“Assignment of legal authority to local 

agencies”).

Section 51.280 (“Resources”) of Subpart O (“Miscellaneous Plan Content Requirements”) also relates to 

CAA section 110(a)(2)(E)(i) and it specifies that, with respect to resources, a SIP must include a 
21

description of the resources available to the state and local agencies at the date of submission of the plan 

and of any additional resources needed to carry out the plan during the five-year period following its 

submission. The description must include projections of the extent to which resources will be acquired at 

1-, 3-, and 5-year intervals.

Section 51.240 (“General Plan Requirements”) states that “[e]ach State implementation plan must 

identify organizations, by official title, that will participate in developing, implementing, and enforcing 

the plan and the responsibilities of such organizations. The plan shall include any related agreements or 

memoranda of understanding among the organizations.”

Nevada’s response to this requirement

Nevada’s Pb Infrastructure Submittal cites various state statutes that provide authority to the relevant 

state and local entities to implement the CAA. For instance: NRS 445B.205 designates the DCNR as the 

air pollution control agency for Nevada; NAC 445B.053 assigns NDEP the responsibility of managing 

air quality planning and air pollution control programs; NRS 445B.500 requires county entities (i.e., 

Clark County BCC and Washoe County Health District) in counties with a population greater than 

100,000 to establish and administer an air pollution control program; and NRS 445B.520 grants the SEC 

the authority to direct the DCNR to administer an adequate air pollution control program if such county 

entities fail to establish or administer such an air pollution control program.

Regarding personnel and funding, Nevada’s August 30, 2012 submittal updated the prior submittals, 

addressed the provisions governing such resources for the State of Nevada, Clark County, and Washoe 

County, and requested replacement of Section 12 (“Resources”) of Nevada’s SIP approved in 1972. See

Attachment A of Nevada’s August 30, 2012 submittal. That attachment is the primary basis for our 

evaluation of Nevada’s personnel and funding, while our review of state statutes and other provisions in 

the Nevada SIP is the primary basis for our evaluation of Nevada’s legal authority.

Lastly, the August 30, 2012 submittal provided an analysis and a number of state statutes regarding how 

the state addresses conflict of interest, as per the requirements of CAA section 128. We understand those 

provisions to apply statewide and that local conflict of interest provisions, such as Clark County Code 

Chapter 2.42, as cited in Nevada’s July 23, 2012 submittal, function alongside the requirements of the 

state statutes.

EPA’s evaluation

Our analysis of Nevada’s Pb Infrastructure Submittal largely reiterates the evaluation embodied in the 

technical support documents (TSDs) to our October 23, 2012 final rule46 because the August 30, 2012 

submittal applied equally to the state’s prior ozone and PM2.5 infrastructure SIP submittals as to the 

state’s October 12, 2011 Pb infrastructure SIP submittal. The August 30, 2012 submittal also requested 

that we “apply any and all provisions that may provide support from this submittal to future USEPA 

actions on CAA [section] 110(a)(2) requirements for all NAAQS pollutants....”

Legal Authority

The Legal Authority section of the Nevada SIP consists of two letters from the Nevada Attorney 

General: one dated December 21, 1971, approved by EPA at 37 FR 10842 (May 31, 1972), and another 

dated November 17, 1972, approved by EPA at 38 FR 12702 (May 14, 1973); as well as a number of 

statutory provisions, approved by EPA through a number of rulemakings over the years. The statutory 

 

46 See our proposed (August 3, 2012, 77 FR 46361) and final rules (October 23, 2012, 77 FR 64737) on Nevada’s 

infrastructure SIPs for the 1997 ozone, 1997 PM2.5, and 2006 PM2.5 NAAQS.
22

references in the 1971 Attorney General’s Letter have been superseded by changes made in the laws by 

the Nevada Legislature. NDEP has submitted more recent versions of the relevant statutory provisions 

and EPA has approved them into the Nevada SIP. The following table matches the required authorities 

with the statutory provisions in the applicable Nevada SIP.

Authority to:

Provided in the following sections of the NRS to the State 

Environmental Commission or the State Department of 

Conservation and Natural Resource:47

Adopt emission standards and limitations 

and any other measures necessary for 

attainment and maintenance of national 

standards.

 445B.210 (“Powers of Commission”)(71 FR 51766, August 

31, 2006); and

 445B.230 (“Powers and duties of Department”) (72 FR 11, 

January 3, 2007).

Enforce applicable laws, regulations, and 

standards, and seek injunctive relief.

 445B.210 (“Powers of Commission”)(71 FR 51766, August 

31, 2006);

 445B.230 (“Powers and duties of Department”) (72 FR 11, 

January 3, 2007);

 445B.450 (“Notice and order by Director; hearing; alternative 

procedures”)(72 FR 11, January 3, 2007);

 445B.460 (“Injunctive relief”)(72 FR 11, January 3, 2007); 

and

 455B.640 (“Levy and disposition of administrative fines; 

additional remedies available; penalty”)(72 FR 11, January 3, 

2007).

Abate pollutant emissions on an emergency 

basis to prevent substantial endangerment to 

the health of persons, i.e., authority 

comparable to that available to the EPA 

Administrator under CAA section 303.

 445B.560 (“Plan or procedure for emergency”)(71 FR 51766, 

August 31, 2006).

Prevent construction, modification, or 

operation of a facility, building, structure, or 

installation, or combination thereof, which 

directly or indirectly results or may result in 

emission of any air pollutant at any location 

which will prevent the attainment or 

maintenance of a national standard.

 445B.300 (“Operating permit for source of air contaminant; 

notice and approval of proposed construction; administrative 

fees; failure of Commission or Department to act”)(71 FR 

51766, August 31, 2006).

Obtain information necessary to determine 

whether air pollution sources are in 

compliance with applicable laws, 

regulations, and standards, including 

authority to require recordkeeping and to 

make inspections and conduct tests of air 

pollution sources.

 445B.225 (“Power of Commission to require testing of 

sources”)(71 FR 51766, August 31, 2006);

 445B.230 (“Powers and duties of Department”) (72 FR 11, 

January 3, 2007);

 445B.240 (“Power of representatives of Department to enter 

and inspect premises”)(72 FR 11, January 3, 2007);

 445B.245 (“Power of Department to perform or require test of 

emissions from stacks”)(71 FR 51766, August 31, 2006); and

 445B.580 (“Officer of Department may inspect or search 

premises; search warrant”)(72 FR 11, January 3, 2007).

Require owners or operators of stationary 

sources to install, maintain and use emission 

monitoring devices and to make periodic 

reports to the state on the nature and 

amounts of emissions from such stationary 

 445B.225 (“Power of Commission to require testing of 

sources”)(71 FR 51766, August 31, 2006);

 445B.245 (“Power of Department to perform or require test of 

emissions from stacks”)(71 FR 51766, August 31, 2006); and

 445B.570 (“Confidentiality and use of information obtained 

 

47 Within the DCNR, NDEP has responsibility to manage the air quality planning and air pollution control programs for the 

State of Nevada. The Director of the DCNR has selected the NDEP Administrator as the official designee for the purposes of 

the CAA, including, but not limited to, adoption, revision and submittal of state implementation plans. See letter from Allen 

Biaggi, Director, Nevada Department of Conservation and Natural Resources, to Wayne Nastri, Regional Administrator, 

EPA Region 9, dated May 30, 2007.
23

sources; also authority for the state to make 

such data available to the public as reported 

and as correlated with any applicable 

emission standards or limitations.

by Department; penalty”) (72 FR 11, January 3, 2007).

As shown in the table above, State law provides for the necessary legal authority to State agencies to 

comply with the related requirements of CAA section 110(a)(2)(E)(i) and 40 CFR 51.230 and 51.231. 

However, as authorized under the CAA, Nevada State law also provides for local air pollution control 

districts to carry out a portion of the SIP, and we must evaluate the SIP to ensure that the SIP provides 

the necessary legal authority to the local agencies to meet the applicable CAA requirements.

Under NRS section 445B.500 (“Establishment and administration of program; contents of program; 

designation of air pollution control agency of county for purposes of federal act; powers and duties of 

local air pollution control board; notice of public hearings; delegation of authority to determine 

violations and levy administrative penalties; cities and smaller counties; regulation of certain electric 

plants prohibited”),48 the district board of health, county board of health, or board of county 

commissioners in each county whose population is 100,000 or more must establish a program for the 

control of air pollution and administer the program within its jurisdiction unless superseded. The two 

counties in Nevada to which this statutory provision applies are Clark County and Washoe County. 

In Clark County, the Clark County BCC is responsible for the program called for in NRS section 

445B.500. With respect to air pollution control, the Clark County BCC acts through the Clark County 

DAQ. In Washoe County, the District Board of Health of the Washoe County Health District is 

responsible for the air pollution control program called for in State law. The Washoe County DBOH acts 

through the Washoe County AQMD within the District Health Department. 

Under NRS section 445B.500(1)(b), the local programs must include, without limitation, standards for 

the control of emissions and emergency procedures established by ordinance or local regulation which 

are equivalent to or stricter than those established by statute or state regulations and must provide for 

adequate administration, enforcement, financing and staff. Moreover, under NRS section 

445B.500(1)(c), the applicable district board of health, county board of health or board of county 

commissioners is designated as the air pollution control agency of the county for the purposes of state 

law and the Clean Air Act insofar as it pertains to local programs, and that agency is authorized to take 

all action necessary to secure for the county the benefits of the Clean Air Act. Lastly, under NRS section 

445B.500(1)(d), all of the powers and responsibilities provided for in NRS sections 445B.210, 445B.240 

to 445B.470, inclusive, 445B.560, 445B.570, 445B.580, and 445B.640 are binding upon and inure to the 

benefit of local air pollution control authorities within their jurisdiction. Thus, the same types of 

authorities granted under State law to the SEC and the DCNR are extended to the authorized local air 

pollution control agencies in the State of Nevada. Thus, the SIP meets the related requirements under 

CAA section 110(a)(2)(E)(i) and 40 CFR 51.232(b)(1).

With respect to local air pollution control programs, NRS section 445B.520 (“Commission may 

establish or supersede county program”),49 the SEC is authorized to administer an adequate air pollution 

control program within the county and may supersede any existing county air pollution control program 

where the SEC finds that such a program has become inadequate and if the county program fails to take 

corrective measures identified by the commission. As such, the applicable Nevada SIP provides the 

necessary assurances that, where the state has relied on local governments or regional agencies, the state

 

48 71 FR 51766, August 31, 2006.

49 71 FR 51766, August 31, 2006.
24

has responsibility for ensuring adequate implementation of the SIP as required under CAA section 

110(a)(2)(E)(iii) and 40 CFR 51.232(b)(2).

Therefore, based on the evaluation provided above, we can conclude that the applicable Nevada SIP 

provides for the necessary legal authority to carry out the SIP and thus EPA is proposing to approve the 

Nevada Infrastructure Submittal as meeting the related requirements under CAA section 110(a)(2)(E)(i) 

and (iii), and 40 CFR 51.230 through 40 CFR 51.232. None of the statutory provisions discussed above 

is limited to specific pollutants and thus would apply for the purposes of the 2008 Pb NAAQS. 

Personnel and Funding

The applicable Nevada SIP includes a section titled “Resources” (i.e., Section 12), which was submitted 

as part of the state’s August 30, 2012 submittal and approved by EPA on October 23, 2012.50 Section 12

of that submittal identifies the entities throughout the state that are responsible for air pollution control 

programs and describes the funding mechanisms, funding level, and personnel for NDEP, Clark County 

DAQ, and Washoe County AQMD as the primary agencies for implementing such air pollution control 

programs. At the state level, Section 12 describes various funding mechanisms established by the state, 

including the state’s “Account for the Management of Air Quality...,” and state’s Air Pollution Control 

Account, and those provided by U.S. EPA, including grants pursuant to CAA sections 103 and 105. It 

also describes the roles of NDEP’s two bureaus, the Bureau of Air Quality Planning and the Bureau of 

Air Pollution Control, and the typical and current funding levels and current personnel level for NDEP.

For Clark County and Washoe County, Section 12 reaffirms the legal authorities of each county, as 

discussed above in the subsection entitled “Legal Authority,” and describes the funding mechanisms in 

use by each county including fees charged for permits and technical services, federal grants under CAA 

sections 103 and 105, state grants from the Pollution Control Account, transportation funds (either 

through regional transportation commission taxes or state Department of Motor Vehicle fees), and funds 

from the federal Congestion Mitigation and Air Quality Program (for Clark County) or funds from the 

three local entities participating in the “Interlocal Agreement Concerning the Washoe County District 

Health Department.”

Furthermore, Section 12 asserts that NDEP, Clark County DAQ, and Washoe County AQMD have been 

implementing programs to meet the CAA SIP requirements for 40 years and that they have “adequate 

funding and personnel... to meet the needs of these programs.” Lastly, with respect to projections of 

resource needs, it asserts that “[o]ver the next five years, current funding and personnel levels are 

expected to remain stable via the funding mechanisms described.”

We conclude that such description provides the necessary assurances of adequate funding and personnel 

with respect to the 2008 Pb NAAQS for all three jurisdictions in Nevada (NDEP, Clark County, and 

Washoe County) and thus EPA is proposing to approve the Nevada Infrastructure Submittal as meeting

the resources-related requirements of CAA section 110(a)(2)(E)(i) and 40 CFR 51.280. 

Conflicts of Interest

CAA section 110(a)(2)(E)(ii) refers to the requirements of CAA section 128, which addresses potential 

conflicts of interest concerning final decisions by boards or the heads of executive agencies on permits 

and enforcement orders issued under air pollution control programs developed to meet CAA 

requirements. Nevada’s August 30, 2012 submittal provided an analysis and a number of state statutes 

regarding how the state addresses conflict of interest, as per the requirements of CAA section 128. As 

 

50 77 FR 64737.
25

part of our rulemaking on the state’s infrastructure SIP submittals for the 1997 ozone, 1997 PM2.5, and 

2006 PM2.5 NAAQS, we included our evaluation of the state’s provisions for conflict of interest 

(“Section 128 TSD”) and concluded that they meet the requirements of CAA sections 110(a)(2)(E)(ii) 

and 128 for all three jurisdictions in the state (i.e., the state level, Clark County, and Washoe County).51

That rulemaking approved a number of state statues into the Nevada SIP, where they remain. 

None of the statutory provisions discussed in our Section 128 TSD is limited to specific pollutants and 

thus would apply for the purposes of the 2008 Pb NAAQS. Furthermore, none of the provisions of Clark 

County Code Chapter 2.42, as cited in Nevada’s July 23, 2012 submittal, does anything to undermine 

the applicability of the SIP-approved state statutes to those entities in Clark County that approve permits 

or enforcement orders. As such, we incorporate our Section 128 TSD by reference and herein conclude 

that the same SIP-approved state statutes meet the CAA sections 110(a)(2)(E)(ii) and 128 conflict of 

interest requirements for all NAAQS, including the 2008 Pb NAAQS.

We note, however, one correction to the applicability discussed in that TSD, consistent with our 

response to comments in our October 23, 2012 final rule.52 The Control Officer in Washoe County is the 

District Health Officer of the Washoe County Health District pursuant to Washoe County AQR 010.042, 

rather than the Director of Washoe County AQMD, as stated in our Section 128 TSD. Instead, the 

Director and the Permits and Compliance Branch Chief of the Washoe County AQMD are designated 

agents or representatives of the District Health Officer, pursuant to Washoe County AQR 020.020. Each 

of these roles is subject to adequate conflict of interest requirements for purposes of CAA sections 

110(a)(2)(E)(ii) and 128.

Conclusion

None of the state or local laws cited above is pollutant specific, and thus, to the extent we find that they 

meet the requirements of CAA section 110(a)(2)(E) and the applicable EPA regulations, they do so for 

the 2008 Pb NAAQS. Thus, based on our review of the applicable Nevada SIP and Nevada’s Pb 

Infrastructure Submittal, EPA is proposing to approve Nevada’s Pb Infrastructure Submittal as meeting

the requirements of CAA section 110(a)(2)(E) for the entire state. 

CAA Section 110(a)(2)(F) – Stationary source monitoring and reporting

CAA section 110(a)(2)(F) requires:

as may be prescribed by the Administrator— (i) the installation, maintenance, and replacement 

of equipment, and the implementation of other necessary steps, by owners or operators of 

stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature 

and amounts of emissions and emissions-related data from such sources, and (iii) correlation of 

such reports by the State agency with any emission limitations or standards established pursuant 

to this CAA, which reports shall be available at reasonable times for public inspection.

The SIP must provide citations to regulations with source monitoring, recordkeeping, and reporting 

requirements. For federal regulations on stationary source monitoring, see 40 CFR part 51, subpart A 

(“Air Emissions Reporting Requirements”) and subpart K (“Source Surveillance”).

 

51 See “EPA Evaluation of Nevada Provisions for Section 110(a)(2)(E)(ii)/Section 128,” July 2012, in the docket for this 

proposal.

52 77 FR 64737 at 64741, Comment #7.
26

NDEP’s response to this requirement

Nevada’s Pb Infrastructure Submittal stated that the NDEP has a system for monitoring stationary 

source emissions and for submitting periodic emission reports. Several SIP-approved NAC regulations 

are cited in support, including NAC 445B.256 thru 445B.265, which are all monitoring system 

requirements. A number of regulations related to operating permits are also cited that:

 authorize the Director of the DCNR to include monitoring requirements on stationary source 

permits prior to and after construction [e.g., NAC 445B.308(7)(a)],

 require sources to retain records and make them available on request [e.g., NAC 445B.315(3)],

 authorize compliance testing and sampling (e.g., NAC 445B.252), which results in compliance 

inspection reports that correlate reported emissions to the emission limitations in the operating 

permit,

 contain monitoring, testing, and reporting requirements (e.g., NAC 445B.3368 and 445B.346), 

which satisfy the correlation requirement of CAA section 110(a)(2)(F)(iii); etc.

It also indicates that the state submits data annually to the National Emission Inventory, which is 

available for public inspection, and that monitored data is shared publicly in NDEP’s webpage for the 

Nevada Air Quality Trend Report.53

The Clark County portion of Nevada’s Pb Infrastructure Submittal states that its regulations for 

permitting (i.e., AQR Sections 12.1, 12.2, 12.3, 12.4, which have been approved into the Nevada SIP, 

and Sections 12.9, 12.10, and 12.11) and excess emissions due to malfunctions (i.e., AQR Section 25)

provide authority for the installation and maintenance of emission sampling and testing facilities. It also 

states that emissions data is submitted according to the Air Emissions Reporting Rule (AERR), except 

for confidential information in accordance with local regulations (i.e., AQR Section 12.6) and state law 

(i.e., NRS 445B.570).

The Washoe County portion of the submittal cites a provision (i.e., Washoe County AQR 020.005) that 

authorize the Control Officer to enforce SIP measures, including specific regulations for stationary 

source monitoring and reporting (e.g., Washoe County AQR 030.210 and 030.250) as well as local-only 

provisions for sampling, testing, and record keeping.

EPA’s evaluation

Our analysis of Nevada’s Pb Infrastructure Submittal largely reiterates the evaluation embodied in the 

Overarching TSD to our October 23, 2012 final rule54 because the provisions in the Nevada SIP and 

those cited in Nevada’s Pb Infrastructure Submittal generally apply equally to the state and counties’ 

ozone and PM2.5 air quality management and control programs as to their Pb air quality management and 

control programs.

NDEP

EPA reviewed the requirements in CAA section 110(a)(2)(F), Nevada’s Pb Infrastructure Submittal, and 

the applicable SIP,55 and determined that NDEP requirements (i.e., NAC 445B.252, 445B.256 through 

 

53 As visited on September 4, 2013, the Nevada Air Quality Trend Report presented data for the years 2000-2010 and noted 

that Pb monitoring was not required in any of Nevada’s 15 rural counties (i.e., all but Clark County) and that over the period 

of the report there was a 61% reduction in the national Pb average, based on 92 monitoring sites. Page 10.

54 See our proposed (August 3, 2012, 77 FR 46361) and final rules (October 23, 2012, 77 FR 64737) on Nevada’s 

infrastructure SIPs for the 1997 ozone, 1997 PM2.5, and 2006 PM2.5 NAAQS.

55 The Nevada SIP includes NAC 445.694 (“Emission discharge information”) to address the correlation requirement in CAA 

section 110(a)(F)(iii), but the SEC repealed NAC 445.694 and did not submit a replacement for inclusion in the SIP. Thus, 

NAC 445.694 remains in the SIP, and EPA is not removing it at this time.
27

445B.265, inclusive, and 445B.267) adequately addresses CAA sections 110(a)(2)(F)(i), (ii), and (iii). In 

our evaluation, we also found NRS 445B.570 (“Confidentiality and use of information obtained by 

Department; penalty”), cited in the Clark County portion of Nevada’s Pb Infrastructure Submittal, to be 

supportive of the portion of the CAA section 110(a)(2)(F)(iii) requirement pertaining to the public 

availability of reports. The relevant supporting requirements in the SIP are listed below.

Nevada Revised Statutes (NRS) requirements applicable to NDEP and 

supportive of CAA §110(a)(2)(F) Federal Register

NRS 445B.570 Confidentiality and use of information obtained by 

Department; penalty. 

72 FR 11, January 3, 2006

Nevada Administrative Code (NAC) requirements applicable to NDEP and 

supportive of CAA §110(a)(2)(F) Federal Register

NAC 445B.252 Testing and sampling 73 FR 20536, April 16, 2008

NAC 445B.256 Monitoring systems: Calibration, operation and maintenance 

of equipment

71 FR 71486, December 11, 2006

NAC 445B.257 Monitoring systems: Location 71 FR 71486, December 11, 2006

NAC 445B.258 Monitoring systems: Verification of operational status. 72 FR 19801, April 20, 2007 

NAC 445B.259 Monitoring systems: Performance evaluations 72 FR 19801, April 20, 2007

NAC 445B.260 Monitoring systems: Components contracted for before 

September 11, 1974

72 FR 19801, April 20, 2007

NAC 445B.261 Monitoring systems: Adjustments 71 FR 71486, December 11, 2006

NAC 445B.262 Monitoring systems: Measurement of opacity 71 FR 71486, December 11, 2006

NAC 445B.263 Monitoring systems: Frequency of operation 71 FR 71486, December 11, 2006

NAC 445B.264 Monitoring systems: Recordation of data 71 FR 71486, December 11, 2006

NAC 445B.265 Monitoring systems: Records; reports 71 FR 71486, December 11, 2006

NAC 445B.267 Alternative monitoring procedures or requirements 71 FR 71486, December 11, 2006

NAC 445B.315(3) Contents of operating permits: Exception for operating 

permits to construct; required conditions

77 FR 59321, September 27, 2012

NAC 445B.3368 Additional requirements for application; exception 77 FR 59321, September 27, 2012

NAC 445B.346 Required contents of permit 77 FR 59321, September 27, 2012

NRS 445B.570 requires any information obtained by NDEP during performance of its duties to be

public information unless otherwise designated as confidential information pursuant to the criteria in 

provisions of NRS 445B.570. The emission of an air contaminant which has an ambient air quality 

standard or emission standard or has been designated as a hazardous air pollutant by regulation of the 

SEC cannot be certified as being confidential. EPA has determined NRS 445B.570 is supportive of the 

component in CAA section 110(a)(2)(F)(iii) that reports be made available to the public.

NAC 445B.252 requires that results of source testing must be submitted to the Director of the DCNR 

and that data must be reduced in accordance with applicable procedures. EPA has determined NAC 

445B.252 is supportive of CAA section 110(a)(2)(F)(ii) and (iii).

NAC 445B.256 requires owners or operators of all stationary sources identified in Appendix P to 40 

CFR Part 51 to install, calibrate, operate and maintain all monitoring equipment necessary for 

continuously monitoring the pollutants specified in Appendix P for applicable source categories. Those 

stationary sources must meet the basic requirements of 40 CFR part 51, Appendix P. NAC 445B.256’s 

reference to Appendix P is consistent with requirements found in 40 CFR 51.214 of part 51, subpart K, 

and therefore, is supportive of CAA section 110(a)(2)(F)(i). NACs 445B.257 through 445B.264 provide 

additional detail of the monitoring requirements and are also supportive of CAA section 110(a)(2)(F)(i).
28

NAC 445B.265 requires a source operating a continuous monitoring system to submit written reports of 

excess emissions. The reports are submitted quarterly and must include: (a) the magnitude and time 

period of the excess emissions; (b) specific identification of each period of excess emissions that occurs 

during start-ups, shutdowns, and malfunctions of the affected facility; (c) the nature and cause of any 

malfunction, if known, and the corrective action taken or preventative measures adopted; and (d)

specific identification of each period during which the continuous monitoring system was inoperative. 

EPA has determined NAC 445B.265 is supportive of CAA section 110(a)(2)(F)(ii) and (iii).

NAC 445B.315(3) describes conditions that must be in the permit, including: (1) the holder of the 

operating permit shall retain records of all required monitoring data and supporting information for five 

years after the date of the sample collection, measurement, report or analysis, and (2) allowances for the 

Director of the DCNR or his representative to copy records and sample or monitor to demonstrate 

compliance. The information obtained by the Director under NAC 445B.315(3) becomes public 

information (except for confidential information), as per NAC 445B.570, and thus NAC 445B.315(3) is 

generally supportive of CAA section 110(a)(2)(F)(ii) and (iii). 

NAC 445B.3368 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 is limited to a subset of sources, but for those sources and to the extent the 

requirement results in reports that are available to the public, NAC 445B.3368 is generally supportive of 

CAA section 110(a)(2)(F)(ii) and (iii).

NAC 445B.346 identifies conditions that must be contained in Class II operating permits in addition to the 

general conditions that apply under NAC 445B.315. These conditions include: (1) all requirements for 

monitoring, testing and reporting that apply to the stationary source; and (2) prompt reporting of any 

deviations from any requirements of the operating permit. NAC 445B.346 is limited to a subset of 

sources but is generally supportive of CAA section 110(a)(2)(F)(i)-(iii).

As such, EPA is proposing to find that the portion of the Nevada SIP applicable to NDEP meets the 

requirements of CAA section 110(a)(2)(F) for the 2008 Pb NAAQS.

Clark County

EPA has reviewed the requirements in CAA section 110(a)(2)(F), Nevada’s Pb Infrastructure Submittal, 

and the applicable SIP to determine if Clark County has addressed the CAA section 110(a)(2)(F) 

requirements. As described elsewhere in this TSD (e.g., see discussion of CAA section 110(a)(2)(C)), in 

recent years Clark County made significant revisions to its permit rule requirements, including the SIPapproved provisions of Sections 12.0, 12.1, 12.2, 12.3, and 12.4.

Clark County requirements supportive of CAA §110(a)(2)(F) Federal Register

Section 12.1: Permit Requirements for Minor Sources 77 FR 64039, October 18, 2012

Section 12.2: Permit Requirements for Major Sources in Attainment Areas 

(Prevention of Significant Deterioration)

77 FR 64039, October 18, 2012

Section 12.3: Permit Requirements for Major Sources in Nonattainment Areas 77 FR 64039, October 18, 2012

Section 12.4: Authority to Construct Application and Permit Requirements For 

Part 70 Sources 

77 FR 64039, October 18, 2012
29

Section 12.1 requires that terms and conditions in a permit for a minor source permit include monitoring, 

testing, reporting, and recordkeeping requirements that ensure reasonable information is provided to 

evaluate compliance consistent with permit terms and conditions, the underlying requirements of these 

regulations, and the CAA.

In Sections 12.2 and 12.3, major sources shall monitor the emissions of any regulated NSR pollutant that 

could increase as a result of the project and that are emitted by an applicable emissions unit; and 

calculate and maintain a record of the annual emissions, in tons per year. The owner or operator of the 

major stationary source with a plant-wide applicability limits (PALs) shall comply with the monitoring, 

recordkeeping, and reporting requirements provided in Sections 12.2.19.12 through 12.2.19.14 for each 

emissions unit under the PAL through the PAL effective period.

Section 12.4 describes the administrative procedures for sources to apply for and obtain an Authority to 

Construct Permit (ATC Permit), consistent with the applicable requirements of Sections 12.2 or 12.3. An 

application for an ATC Permit shall contain, if applicable, a description of how the permittee proposes 

to comply with the compliance assurance monitoring requirements in 40 CFR Part 64, including a plan 

describing how the applicant will comply with the monitoring design criteria in 40 CFR 64.3. Section 

12.4 also requires the permit contain (1) all applicable requirements, emission limits, and standards,56

and (2) monitoring, recordkeeping, and reporting requirements sufficient to meet the requirements of 40 

CFR Part 64 or paragraph (d) of Section 12.5.2.6, as deemed necessary by the Control Officer.

As such, EPA is proposing to find that the Nevada SIP applicable to Clark County meets the monitoring 

and reporting requirements of CAA section 110(a)(2)(F)(i) and (ii) for the 2008 Pb NAAQS. However, 

we previously disapproved Nevada’s infrastructure SIP submittals for the 1997 ozone, 1997 PM2.5, and 

2006 PM2.5 NAAQS for CAA section 110(a)(2)(F)(iii) because the provision in the Nevada SIP that 

addressed this requirement (AQR Section 24.5) was repealed by Clark County and is no longer effective 

as of July 1, 2010.57 Since rule revisions have not been adopted by the Clark County BCC and submitted 

to EPA, we are proposing to disapprove the Clark County portion of the Nevada SIP for section 

110(a)(2)(F)(iii) for the 2008 Pb NAAQS

The proposed disapprovals for section 110(a)(2)(F)(iii) with respect to Clark County’s SIP-approved 

stationary source rules, if finalized, will not trigger the obligation for EPA to promulgate a FIP. 

Normally, such disapproval would trigger FIP obligations under CAA section 110(c)(1). However, in 

this instance, the FIP obligations have already been triggered by EPA’s 2012 infrastructure SIP action 

for sources under Clark County jurisdiction. Thus, no purpose would be served by triggering a 

duplicative FIP obligation based on the same identified SIP deficiencies. Substantively, we anticipate 

that SIP revisions that adequately address the requirements of section 110(a)(2)(F)(iii) for sources under 

Clark County jurisdiction to be submitted and approved by EPA prior to expiration of the 2-year FIP 

deadline triggered by our 2012 infrastructure SIP action. 

Washoe County

EPA has reviewed the requirements in CAA section 110(a)(2)(F), Nevada’s Pb Infrastructure Submittal, 

and the Nevada SIP to determine if Washoe County has addressed the CAA section 110(a)(2)(F) 

requirements. EPA has determined that requirements applicable in Washoe County adequately address 

 

56 Applicable requirements not required by the Act or implementing federal regulations, and that are not in the Nevada SIP, 

may be included in the permit but shall be specifically designated as being not federally enforceable and not enforceable by a 

citizen's suit pursuant to the Act, and shall be designated as “county only requirements.” Terms and conditions so designated 

are not subject to the requirements that apply to permit review by EPA and affected states.

57 77 FR 64737 at 64743 to 64744.
30

CAA section 110(a)(2)(F)(i), (ii), or (iii). Even though Washoe County does not have a rule in the SIP 

that adequately addresses the monitoring requirement in CAA section 110(a)(2)(F)(i), EPA issued a 

policy memorandum58 in May 1980 indicating a state no longer had to promulgate continuous emissions 

monitoring regulations for sources not yet in existence at the time of the memorandum. Based on the 

memorandum and prior communications with Washoe County, EPA has determined that Washoe 

County does not have any sources requiring the type of monitoring described in 40 CFR 51.214 of 

Subpart K. Therefore, the Nevada SIP as it applies in Washoe County adequately addresses CAA 

section 110(a)(2)(F)(i). 

Washoe County rules supportive of CAA section 110(a)(2)(F)(ii) and (iii) have also been approved into 

the SIP.

59

 

Washoe County requirements supporting CAA §110(a)(2)(F) Federal Register

030.218 Demonstration of Compliance 77 FR 60915, October 5, 2012

030.230 Recordkeeping 77 FR 60915, October 5, 2012

030.235 Requirements For Source Sampling and Testing 77 FR 60915, October 5, 2012

030.970.A Part 70 Permit Monitoring and Compliance, Compliance Statements 77 FR 60915, October 5, 2012

Rule 030.218 authorizes the Control Officer to require a source to provide applicable data to 

demonstrate compliance with the conditions of their permit.

Rule 030.230 authorizes the Control Officer to require any permit holder to keep adequate records 

concerning contaminant emissions for any equipment or process for which the permit was issued. All 

permittees operating add-on emissions control equipment are required to maintain records sufficient to 

legally demonstrate that the equipment has operated in compliance with all applicable Federal, State and 

District regulations.

Rule 030.235 authorizes the Control Officer to require source stack testing, or other types of source 

testing, to determine the exact quantity and effect of emissions produced by stationary sources. 

Rule 030.970 requires sources subject to Part 70 permits to annually (or more frequently if required) 

submit a statement of compliance addressing each term or condition of operation on an item by item 

basis. The compliance statement includes a variety of criteria such as the compliance status and 

monitoring, record keeping, and reporting requirements, and test methods used for determining the 

compliance. Approval of Rule 030.970 into the SIP was intended to address CAA sections 

110(a)(2)(F)(ii) and (iii).

 

58 Clarification of Requirements for Inclusion of Continuous Emission Monitoring Provisions in State Implementation Plans 

from Edward E. Reich, Director of the Division of Stationary Source Enforcement, to Enforcement Division Directors and 

Air and Hazardous Materials Division Directors in Regions I-X dated May 9, 1980. The Reich memorandum states, “... a 

state need not promulgate CEM regulations to apply to Appendix P sources not yet in existence in the state. Appendix P by its 

terms permits states, in their CEM regulations, to exempt from its coverage sources which would be subject to any NSPS 

requiring CEM. All four of the source categories covered by Appendix P would, if new, be subject to NSPS continuous 

monitoring requirements. Should a source meeting the Appendix P size threshold be subsequently constructed in a state, it 

would be governed by the CEM provisions of the applicable NSPS. Coverage under Appendix P would therefore be 

unnecessary to assuring the continuous monitoring of that new source.”

59 40 CFR 52.1473 applies in Washoe County and contains a federal requirement addressing CAA section 110(a)(2)(F)(iii). 

This requirement remains in effect, and EPA is not removing it at this time.
31

As such, EPA is proposing to find that the Nevada SIP applicable to Washoe County meets the 

requirements of CAA section 110(a)(2)(F) for the 2008 Pb NAAQS.

Conclusion

In conclusion, EPA has reviewed the requirements in CAA section 110(a)(2)(F) and compared them to 

the Nevada Pb Infrastructure Submittal, other supporting information, and the applicable SIP. Based on 

this review, we propose to find that the portion of the Nevada SIP that applies to NDEP and Washoe 

County adequately addresses CAA sections 110(a)(2)(F)(i), (ii), and (iii). With respect to the portion of 

the Nevada SIP that applies to Clark County, we propose to find that CAA sections 110(a)(2)(F)(i) and 

(ii) have been met, and that section 110(a)(2)(F)(iii) has not been met, as discussed above.

CAA Section 110(a)(2)(G) – Emergency episodes

CAA section 110(a)(2)(G) requires SIPs to “provide for authority comparable to that in section 303 and 

adequate contingency plans to implement such authority.”

EPA promulgated rules for emergency episodes in 1971 and revised those rules in 1986 to clarify state 

requirements related to emergency episodes found in section 110(a)(2)(G). These rules are found at 40 

CFR 51.150 through 153, inclusive. EPA has also issued guidance on this subject.60

Nevada’s response to this requirement

Nevada’s Pb Infrastructure Submittal stated that emergency powers are provided in NRS 

445B.560 (“Plan or procedure for emergency”) and NAC 445B.230 (“Powers and duties of 

Department”), which are in the Nevada SIP, and that these provisions are adequate to constrain 

Pb emissions in the event of an emergency. The submittal also notes that the state is classified as 

a Priority III area for several NAAQS pollutants, and thus emergency episode plans are not 

required, and that it’s reasonable to assume that the same would apply for Pb.

This idea is extended in the Washoe County portion of the submittal, which asserts that the 

federal regulations at 40 CFR part 51, Appendix L do not specify action levels for Pb.61 This 

portion of the submittal also reiterates that there are no sources in Washoe County that trigger the 

requirements in 40 CFR part 58, Appendix D for source-oriented monitoring.

The submittal also identifies NRS 445B.500(1)(d) as providing the authority in the appropriate 

counties (i.e., Clark and Washoe counties) to provide regulations for emergency standards and 

abatement procedures pursuant to NRS 445B.560. The Clark County portion further states that 

AQR Section 70 (“Emergency Procedures”)62 addresses emergency episode requirements and 

that AQR Section 6 (“Injunctive Relief”)63 gives Clark County authority to use judicial means to 

enforce compliance or restrain violations of any AQR provision.

EPA’s evaluation

As asserted in the Clark County portion of Nevada’s Pb Infrastructure Submittal, EPA has not 

promulgated regulations governing Pb emergency episodes and, accordingly, has not classified areas as 

Priority I, IA, II, or III. EPA’s 2011 Pb Guidance noted that EPA expects that a Pb emissions event that 

 

60 e.g., EPA’s 2011 Pb Guidance, page 14.

61 Note that Appendix L are model regulations rather than federal requirements.

62 Subsections 70.1-6 were approved into the Nevada SIP on August 27, 1981 (46 FR 43141). 

63 Subsection 6.1 was approved into the Nevada SIP on August 27, 1981 (46 FR 43141).
32

presents an imminent and substantial endangerment to public health or welfare would be unlikely.64 The 

guidance further notes that the central components of a contingency plan would be to reduce emissions 

from the source at issue and public communication or, in the alternative, that states may make the case 

that a specific contingency plan is not needed beyond having the authority to restrain sources from 

causing or contributing to an imminent and substantial endangerment. Nevada has chosen the latter 

approach given the absence of large Pb sources in the state and the existence of emergency episode 

authorities covering the entire state.

NRS 445B.560 provides the SEC the authority to provide “for alert, warning, and emergency standards 

and abatement procedures relative to air pollution episodes or emergencies constituting, or likely to 

constitute, an imminent and substantial danger to the health of persons.” See NRS 445B.560(1). It also 

provides authority for the Director of the DCNR to require sources to develop emergency episode plans, 

as per NRS 445B.560(2),65 and to order the reduction or discontinuation immediately of air contaminant 

emissions that constitute an emergency, as per NRS 445B.560(3).

The SEC implemented such authority by adopting NAC 445B.229, which provides authority to the 

Director of the DCNR and local air pollution control agencies, upon determination of a general air 

pollution emergency, or an air pollution emergency due to one or more stationary sources, to order 

persons causing or contributing to the emergency to reduce or discontinue the emission of air 

contaminants. Similarly, the SEC used its authority to adopt Section 6 (“Emergency Episode Plan”) of 

Nevada’s January 28, 1972 submittal, which was last approved by EPA on July 10, 1980,66 herein 

referred to as the “Nevada Emergency Episode Plan.” The Nevada Emergency Episode Plan sets forth 

specific procedures to be followed in the event of an air pollution emergency in the three Air Quality 

Control Regions included in the State of Nevada, though it does not specify “substantial endangerment 

levels” for Pb.

Clark County and Washoe County have each adopted regulations for emergency episodes that have been 

incorporated into the Nevada SIP. Clark County AQR Section 70 (“Emergency Procedures”) was 

approved into the Nevada SIP on August 27, 1981 (46 FR 43141).67 We note that Clark County AQR 

Section 70.1 refers specifically to the state’s Section 6 “as a guide for the actions during an episode 

condition” (emphasis added) and that its provisions generally follow provisions of NRS 445B.560, NAC 

445B.229, and NAC 445B.230 while establishing the Clark County Control Officer’s authority to order 

reduction or discontinuation of air contaminant emissions during an emergency, and to require 

emergency episode planning by sources.

Washoe County DBOH Air Quality Regulation (AQR) 050.001 was approved into the SIP on June 18, 

2007.

68 This regulation begins with defining its purpose, applicability (the whole Health District), and 

 

64 EPA’s 2011 Pb Guidance, page 13.

65 NAC 445B.230 (“Powers and duties of Department”) manifests the authority of NRS 445B.560 by requiring any source 

emitting more than 100 tpy of regulated air pollutants to prepare an emergency management plan upon written notice from 

the Director.

66 45 FR 46384 at 46385. EPA disapproved Section 6.1.5 of the Plan because it did not meet the requirements of 40 CFR 

51.16 and Appendix L.

67 CCR Section 70 was revised on July 1, 2004 – a version that has not been submitted for incorporation into the SIP. 

However, the only textual difference between the provisions are the replacement of “Health District” with “Department of 

Air Quality and Environmental Management” in the Section 70.3 phrase “incorporated or unincorporated areas of the Health 

District.” Because these both referred to a geographic area, which is the entirety of Clark County, there is no substantive 

difference. Thus while the August 27, 1981 approval suffices for purposes of this infrastructure SIP evaluation, we 

recommend that Clark County submit the revised Clark County AQR Section 70 for incorporation into the SIP.

68 72 FR 33397.
33

relevant terms (see AQR 050.001 Sections A and B). It then establishes emergency episode criteria 

levels for three stages (Alert, Warning, and Emergency) for several pollutants, such as ozone and PM2.5, 

though not for Pb. (see AQR 050.001 Section C). While this implementing regulation for Washoe 

County does not apply to Pb, the state-wide authority of NRS 445B.560 and implementing state 

regulation NAC 445B.229 ensure that the Washoe County DBOH has adequate authority to take action 

in the event of a Pb emergency episode. The prior approvals of the state, Clark County, and Washoe 

County provisions, as identified above, continue to provide an adequate basis for meeting the authority 

requirement of CAA section 110(a)(2)(G). Also, as discussed above for section 110(a)(2)(A), the 2008 

National Emission Inventory of Pb sources in Nevada indicates that the emissions of any given source 

are well below the mandatory monitoring thresholds for airports (1.0 tpy) or stationary sources (0.5 tpy), 

which complements EPA’s expectation that a Pb emergency episode would be unlikely. Thus, we 

propose to find that the Nevada SIP meets the applicable requirements of CAA section 110(a)(2)(G) for 

the 2008 Pb NAAQS.

CAA Section 110(a)(2)(H) – SIP revisions

Section 110(a)(2)(H) requires SIPs to:

provide for revision of such plan—(i) from time to time as may be necessary to take account of 

revisions of such national primary or secondary ambient air quality standard or the availability 

of improved or more expeditious methods of attaining such standard, and (ii) except as provided 

in paragraph (3)(C), whenever the Administrator finds on the basis of information available to 

the Administrator that the plan is substantially inadequate to attain the national ambient air 

quality standard which it implements or to otherwise comply with any additional requirements 

established under this Act.

Nevada’s response to this requirement

The NDEP portion of Nevada’s Pb Infrastructure Submittal states that NRS 445B.205 designates the 

DCNR as the “State Air Pollution Control Agency” and that, pursuant to NAC 445B.053, the Director of 

the DCNR has assigned NDEP to act on behalf of the Director “for the purposes of adoption, revision 

and submittal of state plans.” NDEP also commits to revise the Nevada SIP in response to “changes in 

the NAAQS, availability of improved methods for attaining the NAAQS, or in response to a USEPA 

finding that the SIP is substantially inadequate.

The Clark County portion of the submittal asserts that Clark County AQR Section 2 (“Procedures for 

Adoption and Revision of Regulations and for Inclusion of those Regulations in the State 

Implementation Plan”) sets forth the requirements for adopting regulations and other materials to be 

incorporated into the SIP,69 including SIP revisions per 40 CFR 51.104(a) (implementation plans), 

individual compliance schedules per 40 CFR 51.260, and other SIP revisions submitted to NDEP per 40 

CFR 51.104(d) (variances).

The Washoe County portion of the submittal states that Washoe County AQR 020.005 authorizes the 

Control Officer to enforce section AQR 020.0051 (“Board of Health - Powers and Duties”), which in 

turn authorizes the Washoe County DBOH to revise a SIP to achieve and maintain levels of air quality 

to protect human health.

 

69 Note that the Nevada SIP contains an older version of Clark County AQR Section 2 (“Air Pollution Control Board”) (46 

FR 43141, August 27, 1981), which is unrelated to our evaluation of Nevada’s Pb Infrastructure Submittal for CAA section 

110(a)(2)(H). The current version of Clark County AQR Section 2 (“Procedures for Adoption and Revision of Regulations 

and for Inclusion of those Regulations in the State Implementation Plan”), amended December 20, 2005, is included in the 

docket for this proposal.
34

EPA’s evaluation

NDEP, Clark County, and Washoe County

EPA has reviewed the requirements in CAA section 110(a)(2)(H), Nevada’s Pb Infrastructure Submittal, 

and the Nevada SIP. In particular, in addition to the provisions cited in Nevada’s Pb Infrastructure 

Submittal (such as NRS 445B.205), EPA reviewed NRS 445B.135, 445B.210, 445B.220, and 445B.500 

as possibly providing adequate “authority” for NDEP, Washoe County, and Clark County to implement 

CAA section 110(a)(2)(H). 

 NRS 445B.135 “Federal Act” defined. (see 71 FR 51766, 8/31/2006)

 NRS 445B.205 Department designated as State Air Pollution Control Agency. (see 72 FR 11, 

1/3/2007)

 NRS 445B.210 Powers of Commission. (see 71 FR 51766, 8/31/2006)

 NRS 445B.220 Additional powers of Commission. (see 71 FR 51766, 8/31/2006)

 NRS 445B.500 Establishment and administration of program; contents of program; designation 

of air pollution control agency of county for purposes of federal act; powers and duties of local 

air pollution control board; notice of public hearings; delegation of authority to determine 

violations and levy administrative penalties; cities and smaller counties; regulation of certain 

electric plants prohibited. (see 71 FR 51766, 8/31/2006)

Conclusion

We propose to find that Nevada statutes provide for revision of the SIP (1) as necessary to take account 

of revisions of such national primary or secondary ambient air quality standard or the availability of 

improved or more expeditious methods of attaining such standard and (2) whenever the Administrator 

finds that Nevada’s plan is substantially inadequate to attain the NAAQS or does not comply with 

requirements established under the Act. Therefore, we propose to approve Nevada’s Pb Infrastructure 

Submittals for section 110(a)(2)(H) for the 2008 Pb NAAQS.

CAA Section 110(a)(2)(I) – Plan revisions for nonattainment areas

CAA section 110(a)(2)(I) requires SIPs to “in the case of a plan or plan revision for an area designated 

as a nonattainment area, meet the applicable requirements of part D (relating to nonattainment areas).”

While this section requires States to meet nonattainment area requirements, pursuant to CAA title I, part 

D, when submitting plans or plan revisions for nonattainment areas, EPA has concluded that the 

submission of, and subsequent EPA action on, nonattainment SIP revisions by States is not governed by 

the three-year submission deadline identified in CAA section 110(a)(1). Instead, SIP revisions for 

nonattainment areas are due and evaluated under the requirements for nonattainment areas described in 

part D.

Nevada’s response to this requirement

The NDEP portion of Nevada’s Pb Infrastructure Submittal refers to EPA’s 2011 Draft Pb Guidance, 

noting that EPA does not expect infrastructure SIP submittals to address this element, while the Washoe 

County portion of the submittal indicates that Washoe County AQMD commits to submit SIP revisions 

when and where areas are newly designated nonattainment.

EPA’s evaluation

As noted above, the specific nonattainment area plan requirements of section 110(a)(2)(I) are subject to 

the timing requirement of section 172, not the timing requirement of section 110(a)(1). This element is 

therefore not applicable to this action. Any evaluations of the Nevada SIP in relation to the requirements 
35

of CAA title I, part D will be completed in relation to the relevant nonattainment area plans. We note 

that no area of Nevada is currently designated as nonattainment for the 2008 Pb NAAQS.

CAA Section 110(a)(2)(J) – Consultation with government officials; public 

notification; and PSD and visibility protection

CAA section 110(a)(2)(J) requires SIPs to “meet the applicable requirements of section 121 (relating to 

consultation), section 127 (relating to public notification), and part C (relating to prevention of 

significant deterioration of air quality and visibility protection).”

CAA section 121 requires SIPs, in carrying out the requirements under the CAA requiring SIPs to 

contain any transportation controls, air quality maintenance plan requirements or preconstruction review 

of direct sources of air pollution, or any measure referred to in part D or part C of title I,70 to provide a 

process of consultation with general purpose local governments, designated organizations of elected 

official of local governments, and any Federal land manager (FLM) having authority over Federal land 

to which the state plan applies. Such process shall be in accordance with regulations promulgated by 

EPA. In essence, section 121 requires a satisfactory process of consultation with three kinds of 

organizations (general purpose local governments, designated organizations of elected officials of local 

governments, and any FLM) for three kinds of planning arenas (transportation controls, air quality 

maintenance plans, and preconstruction review of direct sources of air pollution, including PSD).

CAA section 127 requires SIPs to contain measures to effectively notify the public during any calendar 

year on a regular basis of instances or areas in which any NAAQS is exceeded or was exceeded during 

any portion of the preceding calendar year; to advise the public of the health hazards associated with 

such pollution; and to enhance public awareness of the measures which can be taken to prevent such 

standards from being exceeded and the ways in which the public can participate in regulatory and other 

efforts to improve air quality. Such measures may include the posting of warning signs on interstate 

highway access points to metropolitan areas or television, radio, or press notices or information.

For a discussion of the CAA title I, part C requirements, see our evaluation for section 110(a)(2)(C) 

above.

Related EPA Regulations and Guidance

EPA’s regulations concerning consultation are set forth in subpart M (“Intergovernmental 

Consultation”) of 40 CFR part 51, sections 51.240 (“General plan requirements”) and 51.241 

(“Nonattainment areas for carbon monoxide and ozone”). Under section 51.240, each SIP must identify 

organizations by official title that will participate in developing, implementing, and enforcing the SIP 

and the responsibilities of such organizations. The SIP shall include any related agreements or 

memoranda of understanding among the organizations. Under section 52.241, for each Air Quality 

Control Region (AQCR) or portion of an AQCR in which the NAAQS for carbon monoxide or ozone, 

the Governor must certify, after consultation with local officials, the organization responsible for 

developing the revised SIP or portions thereof for such AQCR.

 

70 Section 121 was added by the CAA Amendments of 1977, and it also refers to section 113(d) (relating to certain 

enforcement orders), but section 113(d) was significantly amended by the CAA Amendments of 1990, and as so amended, no 

longer relates to state enforcement orders. Also, we view the requirement of section 121 to provide a satisfactory process of 

consultation for “any measure referred to in part D” to be outside the scope of infrastructure SIP evaluations since the part D 

requirements pertain to nonattainment planning requirements.
36

EPA’s regulations concerning public notification are set forth in subpart O (“Miscellaneous Plan 

Content Requirements”) of 40 CFR part 51, section 51.285 (“Public notification”). Section 51.285 

requires SIPs to provide for “(a) Notifying the public on a regular basis of instances or areas in which 

any primary standard was exceeded during any portion of the preceding calendar year; (b) Advising the 

public of the health hazards associated with such an exceedance of a primary standard; and (c) 

Increasing public awareness of: (1) Measures which can be taken to prevent a primary standard from 

being exceeded, and (2) Ways in which the public can participate in regulatory and other efforts to 

improve air quality.”

In addition, EPA’s 2011 Pb Guidance states that EPA does not expect states to meet the applicable 

requirements for visibility protection under Part C in their submittals for the 2008 Pb NAAQS. While 

EPA recognizes that states are subject to visibility protection and regional haze program requirements 

under Part C of the Act (which includes sections 169A and 169B), in the event of the establishment of a 

new primary NAAQS, the visibility protection and regional haze program requirements under part C do 

not change. Thus, EPA concludes there are no new applicable visibility protection obligations under 

section 110(a)(2)(J) as a result of the 2008 Pb NAAQS.71

Nevada’s response to this requirement

Consultation

The NDEP portion of Nevada’s Pb Infrastructure Submittal identifies a number of SIP provisions as 

providing the appropriate process of consultation. These include SIP-approved statutory powers and 

responsibilities of the SEC and DCNR and statutes regarding cooperation among the local air pollution 

control board and regional planning coalition and regional transportation commission in counties with a 

large population (i.e., NRS 445B.503, which applies in Clark County) and regarding composition of 

District Boards of Health (i.e., NRS 439.390, which applies in Washoe County). They also include 

regulatory provisions for permit applications and operating permits that have largely been approved into 

the Nevada SIP.72 This portion of the submittal also cites non-SIP provisions as supporting CAA section 

121, including a statutory declaration of public policy, parts of the Nevada Administrative Procedure 

Act (NRS 233B) that create opportunities for the public to review proposed regulations, and a regulation 

[NAC 45B.221 (“Adoption by reference and applicability of certain provisions of federal law and 

regulations”)] that incorporates the federal PSD requirements, which include requirements to consult 

with affected land managers. Lastly and importantly, Attachment D of the August 30, 2012 portion of 

Nevada’s Pb Infrastructure SIP included a number of revisions to the state’s provisions for consultation 

in the Nevada SIP.

The Clark County portion of the submittal states that Clark County will consult with local governments 

and affected land managers when carrying out the CAA and that AQR Section 2 (“Procedures for 

Adoption and Revision of Regulations and for Inclusion of those Regulations in the State 

Implementation Plan”) outlines the procedures for adopting and revising regulations.

The Washoe County portion of the submittal states that Washoe County AQR 020.005 and an inter-local 

agreement among the City of Reno, City of Sparks, and Washoe County73 authorize participation by 

local political subdivisions in carrying out the CAA. It also states that Washoe County AQMD commits 

to include all stakeholders in the SIP development process.

 

71 EPA’s 2011 Pb Guidance, p. 16 of the Attachment. 

72 77 FR 59321, September 27, 2012.

73 Interlocal Agreement Concerning the Washoe County District Health Department, 1993 version.
37

Public Notification

The NDEP portion of Nevada’s Pb Infrastructure Submittal states that NDEP maintains a website 

(http://ndep.nv.gov) that describes the state’s air quality planning and air pollution control programs and 

includes public information, such as the annual Nevada Air Quality Trends Report, and real-time 

monitoring of coarse PM (PM10) in Pahrump, Nevada. The Clark County portion of the submittal states 

that near-real time ambient air monitoring data for Pb will be posted to Clark County DAQ’s website 

and that SIP-approved Clark County AQR Section 70 (“Emergency Procedures”) authorizes the Control 

Officer to declare an alert or emergency if sources of air contaminants cause or may cause an imminent 

and substantial endangerment to human health. The Washoe County portion of the submittal cites SIPapproved Washoe County AQR 050.001 as authorizing the Washoe County AQMD to advise the public 

on measures to take to reduce exposure during elevated air pollutant concentrations and references its 

website (http://www.washoecounty.us/health/aqm/home.html) as presenting near-time ambient air 

monitoring data and a trends report, which summarizes Washoe County ambient air quality.

PSD and Visibility Protection

Nevada’s Pb Infrastructure Submittal asserts that NDEP and Washoe County have full delegation of the 

federal PSD program, including coverage for greenhouse gases and, in the NDEP portion of the 

submittal, notes that EPA’s 2011 Draft Pb Guidance stated that EPA does not expect the visibility 

protection portion of section 110(a)(2)(J) to be applicable for Pb, though the submittal references EPA’s 

proposed approval of Nevada’s Regional Haze SIP.74 The Clark County portion of the submittal lists 

Clark County AQR 25, regarding excess emissions during malfunction, and several sub-sections of 

Clark County AQR Section 12, regarding preconstruction permit requirements, as containing the 

relevant provisions for PSD and visibility protection. The Washoe County portion of the submittal also 

notes that the Nevada AQR Article 13 (“General Provisions for the Review of New Sources”) requires 

an environmental evaluation before a registration certificate is issued.

EPA’s evaluation

Consultation

Nevada’s August 30, 2012 submittal is the primary basis for our evaluation of Nevada’s consultation 

provisions given that it: a) substantially revised the October 12, 2011 submittal; b) included Attachment 

D (Section 11, “Intergovernmental Consultation”) to replace the outdated Section 11 

(“Intergovernmental Relations”) of the 1972 SIP; and c) provided one revised and two new statutes for 

incorporation into the SIP.

Attachment D of Nevada’s August 30, 2012 submittal [i.e., Section 11 (“Intergovernmental 

Consultation”) and Exhibits] identifies the relevant federal statutes and regulations, as discussed above 

in the opening paragraphs of our evaluation herein for CAA section 110(a)(2)(J), and describes the 

process for consultation for the following geographic areas relevant to the SIP: statewide, Clark County, 

Lake Tahoe Basin, and Washoe County. For each area, Attachment D identifies the applicable state and 

local provisions governing consultation; describes provisions relevant to consultation in permitting new 

or modified stationary sources; and, for Clark County, Lake Tahoe Basin, and Washoe County, 

addresses consultation’s role in transportation planning and conformity to the Nevada SIP. Attachment 

D also includes four exhibits: two are letters in support of the legal authority of certain parties (i.e., the 

NDEP Administrator, and the Clark County BCC), while the other two are state statutes in support of 

 

74 76 FR 36450, June 22, 2011. Also, see our evaluation of Nevada’s Pb Infrastructure SIP for CAA section 

110(a)(2)(D)(i)(II) above in this TSD for further discussion of EPA’s action on Nevada’s Regional Haze SIP.
38

consultation requirements in Clark County (NRS 445B.503) and representative composition of the 

DBOH in Washoe County (NRS 439.390). 

The revised Section 11 (“Intergovernmental Consultation”), NRS 439.390, and the 2011 codifications of 

NRS 445B.500 and NRS 445B.503 were all approved into the Nevada SIP in 2012.75 Washoe County’s 

Interlocal Agreement Concerning the Washoe County District Health Department also embodies a 

consultative process in that the DBOH must include members from the City of Reno, the City of Sparks, 

and Washoe County. It was also approved into the Nevada SIP in EPA’s October 23, 2012 final rule, 

though it was provided in the state’s separate, December 4, 2009 infrastructure SIP submittal.

EPA is proposing to find that Nevada’s August 30, 2012 Pb Infrastructure Submittal provides a 

satisfactory process of consultation throughout the state with general purpose local governments; 

designated organizations of elected officials of local governments; and any affected Federal Land 

Manager for transportation controls, maintenance plan requirements, and preconstruction review of 

direct sources of air pollution (including PSD). EPA is also proposing to find that Nevada’s 

Infrastructure Submittal identifies organizations that participate in developing, implementing, and 

enforcing the plan at the state level and in Clark County, Lake Tahoe Basin, and Washoe County, as per 

the requirement to do so under 40 CFR 51.240.

Public Notification

The websites for NDEP (http://ndep.nv.gov/), Clark County DAQ 

(http://www.clarkcountynv.gov/depts/airquality/pages/default.aspx), and Washoe County AQMD 

(http://www.washoecounty.us/health/aqm/home.html) offer the public a broad array of information 

about state and county air quality and the programs designed to maintain and improve air quality. As 

such, in practice they serve the purposes of advising the public of the health hazards associated with air 

pollution, enhancing public awareness of air quality concerns, and providing opportunities for the public 

to participate in regulatory and other efforts to improve air quality. These all fall within the themes of 

CAA section 127. However, the websites themselves are not SIP-approved measures, so we evaluated 

the Nevada SIP to identify such SIP-approved measures that might formally address CAA section 127.

In connection with this requirement, the existing applicable Nevada SIP only includes a regulation 

applicable within Clark County. Clark County AQR Section 4 (“Control Officer”), subsection 4.12 

(“Public Notification”)76 requires the Control Officer to notify the public on a regular basis of instances 

or areas in which any ambient air quality standard was exceeded during any portion of the preceding 

calendar year and also addresses the other requirements in CAA section 127. Because Clark County 

section 4.12 refers to any ambient air quality standard, it applies to the 2008 Pb NAAQS even though 

the SIP rule dates from 1981. Clark County’s current rulebook continues to include section 4.12 as

approved into the SIP in 1981.

The highest emitting Pb sources in Nevada are in Clark County (i.e., North Las Vegas and McCarran 

International Airports), though their 2008 NEI levels are well below the source-oriented reporting 

thresholds, as discussed above for CAA section 110(a)(2)(B), and the whole State of Nevada is 

designated as unclassifiable/attainment for the 2008 Pb NAAQS (see 40 CFR 81.329). Furthermore, 

Clark County is the only area in Nevada that is required to have a population-oriented Pb monitor. 

Therefore, the lack of specific public notification requirements in the SIP for the rest of Nevada is 

acceptable with respect to the 2008 Pb NAAQS. Therefore, based on the existing SIP rule (Clark County 

 

75 77 FR 64737, October 23, 2012.

76 46 FR 43141, August 27, 1981.
39

AQR Section 4.12), EPA is proposing to find that the Nevada SIP meets the requirements of CAA 

section 127 with respect to the 2008 Pb NAAQS.

PSD and Visibility Protection

Pursuant to the CAA, a SIP should provide for the implementation of any new PSD requirements that 

are triggered upon the effective date of any new NAAQS. However, sources in a state may be subject to 

the federal PSD requirements pursuant to 40 CFR 52.21, if a state does not have a SIP-approved PSD 

program. As discussed above for section 110(a)(2)(C), EPA previously promulgated FIPs to address the 

PSD program requirements under part C of title I of the CAA by incorporating 40 CFR 52.21 into the 

Nevada SIP, except for Clark County, and fully delegated implementation of the PSD FIPs to NDEP and 

Washoe County. However, until a state adopts and submits a PSD program for EPA approval that 

applies to all regulated pollutants, including GHGs, its SIP is not approvable with respect to CAA 

section 110(a)(2)(J). Therefore, we propose to disapprove the NDEP and Washoe County portions of 

Nevada’s Pb Infrastructure Submittal on the basis that the Nevada SIP does not contain adequate 

provisions to meet the PSD requirement of section 110(a)(2)(J) for the 2008 Pb NAAQS for sources 

under NDEP’s or Washoe County’s jurisdiction.

For Clark County, as discussed above for section 110(a)(2)(C), the SIP-approved PSD program in Clark 

County contains certain “structural” elements, but is missing others for PM2.5. Because Clark County’s 

SIP-approved PSD program does not address the PM condensable and PM2.5 increment requirements 

under part C of title I of the CAA and 40 CFR 51.166(b)(49) and 40 CFR 51.166(c), respectively, we 

propose to disapprove the Clark County portion of Nevada’s Pb Infrastructure Submittal on the basis 

that the Nevada SIP does not meet the PSD-related requirements of CAA section 110(a)(2)(J) in Clark 

County. The rationale for FIP obligations discussed above for section 110(a)(2)(C) for Clark County’s 

PSD program applies for section 110(a)(2)(J) for sources under Clark County jurisdiction. That is, as a 

result of EPA’s October 18, 2012 limited disapproval of Clark County’s PSD program with respect to 

the requirements regarding condensable particular matter (77 FR 64039), EPA is already obligated to 

promulgate a FIP to address this deficiency no later than two years from the effective date of that action, 

i.e., by November 19, 2014. This FIP obligation remains unchanged.77 Since that time, the July 20, 2012 

deadline for submitting adopted PM2.5 increments consistent with EPA’s requirements in 40 CFR 

51.166(c) has passed (see 75 FR 64864 at 64898), and Clark County’s PSD program is now deficient 

with respect to this requirement as well. Thus, we propose to disapprove the Clark County portion of 

Nevada’s Pb Infrastructure Submittal on the basis of these two PSD program deficiencies. If finalized, 

this proposed disapproval would require EPA to promulgate a narrow FIP establishing PM2.5 increments 

consistent with the requirements of 40 CFR 51.166(c) in Clark County, unless Nevada submits and EPA 

approves PSD provisions that correct this narrow deficiency within two years after the effective date of 

such final action.

With regard to the requirement of the plan to meet the applicable requirements for visibility protection, 

EPA’s 2011 Pb Guidance states that EPA would not expect to treat this provision as applicable for 

purposes of the infrastructure SIP approval process, as noted by the NDEP portion of Nevada’s Pb 

Infrastructure Submittal. Thus, while SIP-approved provisions like those cited for the state (e.g., 

Nevada’s 2009 Regional Haze SIP), Clark County [e.g., subsections of Section 12 (preconstruction 

permitting), Section 25 (excess emissions during malfunction)] and Washoe County (e.g., Nevada AQR

Article 13 (“General Provisions for the Review of New Sources”) may address visibility protection, we 

do not find any visibility protection obligations under CAA section 110(a)(2)(J) for the 2008 Pb 

NAAQS.

 

77 See n. 22, supra. 
40

Conclusion

Based on our review of the applicable Nevada SIP and Nevada’s Pb Infrastructure Submittal, we 

propose to conclude that Nevada has met the consultation, public notification, and visibility 

requirements of section 110(a)(2)(J) for the entire state for the 2008 Pb NAAQS. We also propose to 

conclude that the NDEP, Clark County, and Washoe County portions of the Nevada SIP do not meet the 

PSD-related requirements of section 110(a)(2)(J) for the reasons discussed in our evaluation for sections 

110(a)(2)(C) and 110(a)(2)(J). Accordingly, we propose to approve the Nevada Pb Infrastructure 

Submittal as meeting the consultation and public notification requirements of CAA section 110(a)(2)(J) 

for the 2008 Pb NAAQS statewide. We also propose to disapprove the Nevada Pb Infrastructure 

Submittal for the PSD-related requirements of CAA section 110(a)(2)(J) for the 2008 Pb NAAQS 

statewide.

CAA Section 110(a)(2)(K) – Air quality modeling and submission of modeling data

Section 110(a)(2)(K) requires SIPs to:

provide for—(i) the performance of such air quality modeling as the Administrator may 

prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any 

air pollutant for which the Administrator has established a national ambient air quality 

standard, and (ii) the submission, upon request, of data related to such air quality modeling to 

the Administrator.

To meet Element K, EPA recommends that states submit, for inclusion in the SIP (if not already part of 

the SIP), the statutory or regulatory provisions that provide state and local air agencies with the authority 

to perform the following actions along with a narrative explanation of how the provisions meet the 

requirements of this element: (1) conduct air quality modeling to predict the effect on ambient air quality 

of any emissions of any air pollutant for which a NAAQS has been promulgated, and (2) provide such 

modeling data to the EPA Administrator upon request.78

Additionally, EPA requires air quality impacts analyses for purposes of the regulation of new sources 

and modifications and has prescribed guidelines on air quality models. See 40 CFR 51.160(f), 51.166(l), 

and Appendix W (“Guideline on Air Quality Models”).79 Specifically, EPA’s PSD regulations in 40 

CFR 51.166 require that SIPs specify that all applications of air quality modeling for PSD purposes must 

be “based on the applicable models, data bases, and other requirements specified in appendix W of [part 

51].” 40 CFR 51.166(l). Likewise, EPA’s general NSR regulations in section 51.160 require that SIPs 

contain procedures to “discuss the air quality data and the dispersion or other air quality modeling used 

to meet the requirements of [40 CFR part 51, subpart I]” and require that all such applications of air 

quality modeling be “based on the applicable models, data bases, and other requirements specified in 

appendix W of [part 51].” 40 CFR 51.160(f). Both of these provisions state that where an air quality 

model specified in Appendix W80 is inappropriate, the model may be modified or another model 

substituted with EPA’s written approval, following notice and opportunity for public comment. 40 CFR 

 

78 See 2013 Infrastructure SIP Guidance at 55.

79 EPA also requires that each SIP identify and describe the air quality model(s) used to demonstrate the adequacy of a 

control strategy to provide for the timely attainment and maintenance of the NAAQS (see 40 CFR 51.112 and 51.115(b)) and 

has issued guidance for such purposes. See, e.g., U.S. EPA, Office of Air Quality Planning and Standards, “Guidance on the 

Use of Models and Other Analyses for Demonstrating Attainment of Air Quality Goals for Ozone, PM2.5, and Regional 

Haze,” EPA-454/B-07-002 (April 2007). These provisions address requirements under part D, title I of the Act and do not 

apply to our evaluation of an infrastructure SIP under CAA section 110(a).

80 EPA’s requirements for air quality modeling in 40 CFR part 51, appendix W, were significantly amended on November 9, 

2005 (70 FR 68218).
41

51.160(f)(2), 51.166(l)(2). EPA’s PSD regulations also provide that SIPs must require the permitting 

authority to make available in at least one location in the region where a proposed source would be 

constructed a copy of all materials that the permit applicant submitted, and to notify EPA (among 

others) of the public comment period on any proposed PSD permit. 40 CFR 51.166(q)(2)(ii), (iv).

NDEP’s response to this requirement

The NDEP portion of Nevada’s Pb Infrastructure Submittal states that several NAC regulations (i.e., 

NAC 445B.308, 445B.310, and 445B.311) that have been approved into the Nevada SIP require an 

environmental evaluation of new and modified stationary sources consistent with the requirements of

CAA section 110(a)(2)(K).

The Clark County portion of the submittal states that Clark County’s air quality modeling comports with 

EPA’s final guidance on the use of models in NAAQS attainment demonstrations, that the County will 

continue to model air quality according to EPA and Clark County DAQ modeling guidance and 

protocols and to submit data and results to EPA when requested, and that Clark County AQR Sections 

12.2 (“Permits Requirements for Major Sources in Attainment Areas”) and 12.4 (Authority to Construct 

Application and Permit Requirements for Part 70 Sources”) require air quality modeling consistent with 

EPA requirements.

The Washoe County portion of the submittal references two Washoe County AQR regulations (030.235 

(“Requirements for Source Sampling and Testing”) and 030.503 (“Conditions for Approval”) as meeting 

the requirements of CAA section 110(a)(2)(K). AQR 030.235 was approved into the SIP,81 but AQR 

030.503 has not been submitted as a revision to the Nevada SIP.

EPA’s evaluation

EPA has reviewed both Nevada’s Pb Infrastructure Submittal, which discusses SIP-approved regulations 

for the review of new and modified sources of emissions and attainment demonstrations, and several

SIP-approved statutes that authorize the state and local agencies in Nevada to model ambient air quality 

and to submit data to EPA, upon request.

Per Nevada Revised Statute (NRS) 445B.210 (“Powers of Commission”), the Nevada SEC is vested 

with authority to adopt measures necessary for attainment and maintenance of national standards. 

Similarly, NRS 445B.230 (“Powers and duties of Department”) authorizes the DCNR, which manages 

air quality planning and control responsibilities through NDEP, to make determinations and issue orders 

to implement the purposes of the state’s air pollution laws (i.e., NRS 445B.100 thru 445B.640),

excluding laws for the control of emissions from engines (i.e., NRS 445B.700 thru 445B.845). 

Consistent with 40 CFR part 51, Appendix W, under section 7.0 (“General Modeling Considerations”), 

section 7.2.1.1 (“Design Concentrations for SO2, PM-10, CO, Pb, and NO2”), paragraph (a), states that 

“[a]n air quality analysis of... Pb... is required to determine if the source will (1) cause a violation of the 

NAAQS, or (2) cause or contribute to air quality deterioration greater than the specified allowable PSD 

increment.” These SIP-approved82 requirements are discussed further in section 10.0 (“Regulatory 

Application of Models”) for several NAAQS, including Pb. Thus, air quality modeling for Pb to 

determine violations of the NAAQS or effects on PSD increments falls within the authorities of the SEC 

and DCNR to secure air quality that protects human health and welfare. In addition, NRS 445B.590

(“Account for the Management of Air Quality: Creation and administration; use; interest; payment of 

claims”), section (2)(a)(7) authorizes the DCNR to use funds from the Account for the Management of 

 

81 77 FR 60915, October 5, 2012.

82 See 40 CFR 52.1470(e) (“EPA-approved Nevada nonregulatory provisions and quasi-regulatory measures”).
42

Air Quality to perform modeling, analyses, and demonstrations. These SIP-approved83 provisions 

generally authorize NDEP to conduct air quality modeling to predict the ambient effects of NAAQS 

pollutants, including Pb, and to provide such modeling data to the EPA upon request.

With respect to Clark and Washoe Counties, under NRS 445B.500 (“Establishment and administration 

of program; contents of program; designation of air pollution control agency of county for purposes of 

federal act; powers and duties of local air pollution control board; notice of public hearings; delegation 

of authority to determine violations and levy administrative penalties; cities and smaller counties; 

regulation of certain electric plants prohibited”), paragraph (1)(c), the applicable district board of health, 

county board of health or board of county commissioners in counties with a population greater than 

100,000 is designated as the air pollution control agency of the county for the purposes of state law and 

the CAA insofar as it pertains to local programs. Such agencies are authorized to take all actions

necessary to secure for the county the benefits of the CAA. Also, under NRS section 445B.500(1)(d), all 

of the powers and responsibilities provided for in NRS sections 445B.210, 445B.240 to 445B.470, 

inclusive, 445B.560, 445B.570, 445B.580, and 445B.640 are binding upon and inure to the benefit of 

local air pollution control authorities within their jurisdiction. Thus, the same types of authorities 

granted under State law to the SEC and the DCNR are extended to the authorized local air pollution 

control agencies in the State of Nevada. These provisions generally authorize both the Clark County 

Board of County Commissioners (through the Clark County DAQ) and the Washoe County District 

Board of Health (through the Washoe County AQMD) to conduct air quality modeling to predict the 

ambient effects of NAAQS pollutants, including Pb, and to provide such modeling data to the EPA upon 

request.

NDEP

NDEP currently does not have a federally approved PSD program in the Nevada SIP, but NDEP's PSD 

program incorporates by reference the federal PSD program in 40 CFR Part 52.21, including subsection 

(l) “Air quality models.” Additional modeling requirements have also been submitted by Nevada and 

approved into the SIP. As stated in Nevada’s Pb Infrastructure Submittal, modeling is also part of 

NDEP’s general NSR permitting program. Specifically, NAC 445B.311, section (1) requires an 

environmental evaluation for new or modified stationary sources pursuant to NAC 445B.308 to 

445B.314 and section (4) requires a dispersion analysis used to determine the location and estimated 

value of the highest concentration of each regulated air pollutant and for such an analysis to include a 

dispersion model based on the applicable models, bases and other requirements specified in the 

“Guideline on Air Quality Models” (i.e., 40 CFR part 51, Appendix W). This requirement applies to all 

stationary sources in Nevada that are in attainment or unclassifiable areas, except in areas classified as 

Class IV, as per NAC 445B.308. These SIP-approved84 permitting regulations further support the 

State’s section 110(a)(2)(K) demonstration with respect to sources under NDEP jurisdiction.85

 

83 See 40 CFR 52.1470(c) (“EPA approved regulations”).

84 See 40 CFR 52.1470(c) (“EPA approved regulations”).

85 Although EPA has previously evaluated infrastructure SIPs addressing section 110(a)(2)(K) by reviewing SIP-approved 

PSD provisions for compliance with EPA’s requirements for air quality models in 40 CFR 51.166(l), we now propose to find 

that section 110(a)(2)(K) may be satisfied by a demonstration of authority to perform the following actions along with a 

narrative explanation of how the provisions meet the requirements of this element: (1) conduct air quality modeling to predict 

the effect on ambient air quality of any emissions of any air pollutant for which a NAAQS has been promulgated, and (2) 

provide such modeling data to the EPA Administrator upon request. See 2013 Infrastructure SIP Guidance at 55. To the 

extent the State has supported its section 110(a)(2)(K) demonstration by discussing SIP-approved PSD and other permitting 

regulations that address air quality models, we have reviewed those provisions together with the relevant statutory authorities 

as part of our assessment of the State’s section 110(a)(2)(K) demonstration as a whole.
43

Clark County

Clark County has previously submitted the modeling and emissions reductions data with attainment 

demonstration SIP revisions, which rely on the county’s capacity to model the effect of emissions on 

ambient air quality. For instance, see the final rule redesignating the Las Vegas, Nevada carbon 

monoxide nonattainment area to attainment86 and the final rule redesignating the Las Vegas, Nevada 8-

hour ozone nonattainment area to attainment.87 Each submittal required and included the relevant air 

quality modeling, and therefore demonstrates Clark County’s practice of conducting air quality 

modeling for attainment demonstration purposes.

Modeling is also part of Clark County’s SIP-approved PSD permitting program. Specifically, Section

12.2 and Section 12.4 contain Clark County’s regulations to implement the requirements of the PSD 

program in part C, title I of the Act and EPA’s implementing regulations in 40 CFR 51.160-164 and 

51.166. This program applies to large new and modified sources of criteria pollutants for which Clark 

County has been designated as attainment or unclassifiable and certain other (non-criteria) pollutants 

subject to regulation under the CAA. Clark County Section 12.4 requires that each application for a PSD 

permit include, among other things, the air quality modeling and other source impact analyses required 

by Section 12.2. See Section 12.4, subsection 12.4.3.1(b). Section 12.2, in turn, specifically requires that

all estimates of ambient concentrations required under Section 12.2 be based on applicable air quality 

models, databases, and other requirements specified in 40 CFR Part 51, Appendix W (“Guideline on Air 

Quality Models”). See Section 12.2, subsection 12.2.11. Where an air quality model specified in 

Appendix W is inappropriate, the model may be modified or another model substituted, but only after 

obtaining EPA’s written approval. Id. These SIP-approved PSD regulations further support the State’s 

section 110(a)(2)(K) demonstration with respect to sources under Clark County’s jurisdiction.88

Washoe County

Washoe County currently does not have a federally approved PSD program in the Nevada SIP, but 

Washoe County's PSD program incorporates by reference the federal PSD program in 40 CFR Part 

52.21, including subsection (l) “Air quality models.” Additional modeling requirements are also briefly 

described in Washoe County AQR 030.023 (“Evaluation of Registration Application”) and 030.235 

(“Requirements for Source Sampling and Testing”), the latter being part of the Nevada SIP.

89 Regulation 

030.023 requires the Control Officer to review an Authority to Construct application and determine by 

approved modeling or other methods if the proposed control technology will meet regulatory 

requirements. Regulation 030.235 indicates that the Control Officer may require a pollutant impact 

analysis, including but not limited to, source or receptor modeling. These SIP-approved permitting 

regulations further support the State’s section 110(a)(2)(K) demonstration with respect to sources under 

Washoe County’s jurisdiction.

Conclusion

Based on our review of the Nevada Pb Infrastructure Submittal, including the SIP-approved regulations 

referenced therein, and several general statutory provisions in the applicable Nevada SIP, we propose to 

conclude that the provisions discussed above provide the NDEP, Clark County, and Washoe County air 

agencies with the authority to (1) conduct air quality modeling to predict the effect on ambient air 

quality of any emissions of any air pollutant for which a NAAQS has been promulgated and (2) provide 

such modeling data to the EPA Administrator upon request. Accordingly, we propose to approve the 

 

86 75 FR 59090, September 27, 2010.

87 78 FR 149, January 8, 2013.

88 See 77 FR 64039, October 18, 2012 for EPA’s most recent final action on Clark County’s stationary source permit 

programs in Section 12.

89 See 40 CFR 52.1470(c) (“EPA approved regulations”).
44

Nevada Pb Infrastructure Submittal as meeting the requirements of section 110(a)(2)(K) for the 2008 Pb 

NAAQS statewide.

CAA Section 110(a)(2)(L) – Permitting fees

Section 110(a)(2)(L) requires that each SIP:

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 (i) the reasonable 

costs of reviewing and acting upon any application for such a permit, and (ii) 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 (not including any court costs or other costs 

associated with any enforcement action), until such fee requirement is superseded with respect to 

such sources by the Administrator’s approval of a fee program under title V of the Act.

Nevada’s response to this requirement

The NDEP portion of Nevada’s Pb Infrastructure Submittal cites several state statutes, as well as older 

and newer state permitting regulations to address the permitting fees requirement of CAA section 

110(a)(2)(L), including:

 State statutes: NRS 445B.230 (“Powers and Duties of Department”), 445B.235 (“Additional 

powers of Department”), and 445B.300 (“Operating permit for source of air contaminant; notice 

and approval of proposed construction; administrative fees; failure of Commission or 

Department to act.”),

 Older regulations:90 NAC 445.704, 445.706, 445.707, 445.712, and 445.716, and

 New regulations:91 NAC 445B.319, 445B.331, 445B.344, 445B.3441, 445B.3443, 445B.3457, 

445B.3473, 445B.3485, and 445B.3497.

The Clark County portion of the submittal refers to the fees authorized under Clark County AQR 

Section 18 (“Permit and Technical Fees”)92 for sources subject to Title V of the CAA and states that it 

will continue to implement such source permit fee regulations consistent with CAA sections 501 thru 

507. The Washoe County portion of the submittal cites to permitting fees authorized under Washoe 

County AQR 030.210 (“Issuance of Permits to Operate”)93 and 030.310 (“Permit to Operate”).94

Attachment A (“Resources”) of Nevada’s August 30, 2012 submittal also provides useful information in 

describing the sources, accounts, and outlays of money for various purposes, including those related to

permitting.

EPA’s evaluation

As described in Attachment A of Nevada’s August 30, 2012 submittal, NRS 445B.590 (“Account for the 

Management of Air Quality: Creation and administration; use; interest; payment of claims”) established 

 

90 These were removed from the Nevada SIP, as per 77 FR 59321, September 27, 2012.

91 These were added to the Nevada SIP, as per 77 FR 59321.

92 An old version of Clark County AQR Section 18 appears in the Nevada SIP (see 47 FR 26386, June 18, 1982). However, 

while the current Section 18 (last revised February 11, 2013) continues to address permit and technical service fees, the 

content of the regulation has been substantially revised and has not been submitted as a SIP revision.

93 Washoe County AQR 030.210 was approved at 46 FR 21758, April 14, 1981. However, the current version of this 

regulation was last revised on October 25, 1995 and includes additional language regarding proper fees for small sources or 

those with very small populations nearby.

94 Washoe County AQR 030.310 was approved at 46 FR 43141, August 27, 1981. However, the current version of this 

regulation was last revised on October 20, 1993 and indexes permit fees with the Federal Consumer Price Index, rather than a 

static fee per pound of emissions and hours of operation.
45

the Account for the Management of Air Quality within the state’s General Fund. In turn, per page A-2 of 

Attachment A:

NRS section 445B.300(2)(a) requires the State Environmental Commission (SEC) to provide by 

regulation for the issuance, renewal, modification, revocation, and suspension of operating 

permits, and to charge appropriate fees for their issuance in an amount sufficient to pay the 

expenses of administrating the statutory air pollution control program and any regulations 

adopted to implement that program.

The SEC adopted such a regulation in NAC 445B.327 that is a schedule of fees for various activities 

including fees for operating permits and permits to construct for both non-PSD sources [e.g., NAC 

445B.327(1)] and PSD sources [e.g., NAC 445B.327(2)]. Thus, the fees collected from various sources, 

including operating permit fees and one-time (e.g., permit application) fees placed into the Account for 

the Management of Air Quality, are used to cover the cost of reviewing and acting upon permit 

applications and implementing and enforcing the terms and conditions of operating permits. 

For Clark and Washoe counties, as noted on page A-3 of Attachment A of Nevada’s August 30, 2012 

submittal, “[t]he state laws establishing local air pollution control agencies in certain counties also 

provide for similar powers and responsibilities to those agencies as provided to the SEC and the NDEP, 

including the power and duty to charge appropriate permit fees. See NRS 445B.500(1)(d).” We find that 

these two counties have implemented this authority in adopting local regulations, including the 

following (based on the current versions of the regulations):

 Clark County AQR Section 12.1 and 12.4, relating to permits to construct: requires that minor 

source applications (per Section 12.1.3.3) and major source applications (per Section 

12.4.3.1(e)(17) include applicable fees established or assessed pursuant to Section 18.95

 Clark County AQR Section 18 (“Permit and Technical Service Fees”), relating to permits to 

construct and operation permits.

 Washoe County AQR 030.210, relating to operating permits: “The Permit to Operate will be 

issued when the Control Officer determines... (d) the proper fees, as established by the District 

Board of Health, have been paid.”

 Washoe County AQR 030.305, relating to permits to construct:96 “Plan review fees shall be 

charged for review of Authority to Construct applications. Fees for new, existing or modified 

sources shall be set by the District Board of Health....”

 Washoe County AQR 030.310, relating to operating permits: “...Permit to Operate fees are as set 

by the District Board of Health. The District Board of Health shall increase the permit fee rate 

each year by an amount equal to or greater than the Federal Consumer Price Index....”

In a broader context, the operating fee requirements of CAA section 110(a)(2)(L) have been superseded 

by EPA’s approval of the title V programs of NDEP, Clark County, and Washoe County (i.e., the entire 

state).97 Each of these approved programs contains regulations providing for collection of the necessary 

permitting fees. See NAC section 445B.327; Clark County Board of County Commissioners Air Quality 

Regulations sections 19.7 [now implemented as section 12.5.2.6(h)] and 18.6; and Washoe County 

AQRs governing Air Quality Management sections 030.300 through 030.335, inclusive.

 

95 Clark County AQR Sections 12.1 and 12.4 were approved into the Nevada SIP. See 77 FR 64039, October 18, 2012.

96 Washoe County AQR 030.305 was approved at 46 FR 21758, April 14, 1981. However, the current version of this 

regulation was last revised on October 20, 1993 and its text was wholly revised.

97 66 FR 63188, December 5, 2001.
46

As such, we propose to find that the Nevada SIP and Nevada’s Pb Infrastructure SIP meet the 

requirements of CAA section 110(a)(2)(L) for the 2008 Pb NAAQS.

CAA Section 110(a)(2)(M) – Consultation/participation by affected local entities

Section 110(a)(2)(M) requires SIPs to “provide for consultation and participation by local political 

subdivisions affected by the plan.” 

EPA interprets this requirement as meaning more than just allowing for public input. The SIP must 

identify policies or procedures requiring consultation and participation by local political subdivisions 

affected by the relevant implementation plan. The SIP must also identify the organizations responsible 

for implementing and enforcing air quality regulations, and any related agreements or memoranda of 

understanding among these organizations. See 40 CFR 51.240 (“General plan requirements”).

Nevada’s response to this requirement

The NDEP portion of Nevada’s Pb Infrastructure Submittal identifies a number of SIP provisions as 

providing a process for public participation in the development of SIP revisions. These include SIPapproved statutory authorities of the SEC and DCNR to implement CAA programs (i.e., NRS 445B.220, 

445B.235, 445B.500, etc), as discussed above for section 110(a)(2)(E), and SIP-approved regulatory 

provisions for permit applications and operating permits that have largely been approved into the 

Nevada SIP.98 It also cites non-SIP provisions as supporting CAA section 110(a)(2)(M), including a 

statutory declaration of public policy (i.e. NRS 445B.100), parts of the Nevada Administrative 

Procedure Act (NRS 233B) that create opportunities for the public to review proposed regulations, and a 

regulation [NAC 445B.221 (“Adoption by reference and applicability of certain provisions of federal 

law and regulations”)] that incorporates the federal PSD requirements. Lastly and importantly, 

Attachment D of the August 30, 2012 portion of Nevada’s Pb Infrastructure SIP included a number of 

revisions to the state’s provisions for consultation in the Nevada SIP.

The Clark County portion of the submittal notes that Clark County consults with stakeholder committees 

on policy decisions and technical issues, such as the Air Quality Technical Advisory Committee, which 

includes private sector and local governmental representatives. In addition, NRS 445B.503 requires 

Clark County to consult with the Southern Nevada Regional Planning Coalition (RPC) and Regional 

Transportation Commission (RTC).

The Washoe County portion of the submittal states that SIP revisions are adopted in a public hearing 

before the Washoe County DBOH and that Washoe County AQR 020.005 and an inter-local agreement 

among the City of Reno, City of Sparks, and Washoe County99 authorize participation by local political 

subdivisions in carrying out the CAA, noting that the inter-local agreement requires that the Washoe 

County DBOH include one elected official from each of the three local political subdivisions.

EPA’s evaluation

NDEP

Nevada’s August 30, 2012 submittal is the primary basis for our evaluation of Nevada’s consultation 

and participation provisions given that a) it substantially revised the prior Pb infrastructure submittal, 

 

98 77 FR 59321, September 27, 2012.

99 Interlocal Agreement Concerning the Washoe County District Health Department, 1993 version.
47

and b) it included an Attachment D (Section 11, “Intergovernmental Consultation”), which has been 

approved into the Nevada SIP.100

Attachment D of Nevada’s 2012 Submittal identifies the relevant federal statutes and regulations for 

consultation that tie to CAA sections 110(a)(2)(J) and 110(a)(2)(M), as discussed above in the opening 

paragraphs of this TSD’s evaluation of these two infrastructure SIP elements. Section 110(a)(2)(J) refers 

to section 121, which specifically addresses three kinds of entities for three types of air quality plans 

(i.e., consultation with general purpose local governments, designated organizations of elected officials 

of local governments, and any FLM for transportation controls, air quality maintenance plans, and 

preconstruction review of direct sources of air pollution, including PSD). By contrast, section 

110(a)(2)(M) refers only to “local political subdivisions affected by the [SIP],” but takes a broader view 

(i.e., it does not refer to specific types of air quality plans within the SIP and refers to “participation” in 

addition to consultation). Thus, for our evaluation of 110(a)(2)(M) we looked to Nevada’s more general 

provisions for consultation and participation by local political subdivisions, such as the Clark County 

DAQ, Tahoe Regional Planning Agency, Washoe County AQMD, and respective incorporated cities 

and county and regional organizations in each.

Attachment D describes the process for consultation for the following geographic areas relevant to the 

SIP: statewide, Clark County, Lake Tahoe Basin, and Washoe County. For each area, Attachment D 

identifies the applicable state and local provisions governing consultation and notification to affected 

entities, including for those parts of the SIP related to permitting new and modified major sources and 

transportation planning, as appropriate. By the very nature of delegating air program responsibilities to 

Clark County BCC and DAQ and Washoe County DBOH and AQMD and cooperating with the Tahoe 

Regional Planning Agency, while retaining SIP revision authority at the state level, Nevada has instilled 

a process for developing, implementing, and enforcing the SIP that relies upon the involvement of such 

local political subdivisions. Beyond these county and regional subdivisions, each of the three local 

jurisdictions (Clark County, Lake Tahoe Basin, and Washoe County) integrate further local political 

subdivisions in matters relating to the SIP. These include regional planning organizations; regional 

transportation organizations; and incorporated cities in Clark and Washoe counties, where the vast 

majority of the Nevada population resides. In addition, the Nevada SIP (including the SIP-approved 

NRS 445B.500 and NRS 445B.503) provides authority and functionality to the primary agencies in 

Clark and Washoe counties to engage local political subdivisions on air quality planning.

In addition, other SIP provisions support, but are not sufficient in themselves, Nevada’s consultation 

processes. These include NRS 445B.210 (“Powers of Commission”), NRS 445B.220 (“Additional 

powers of Commission”), and NRS 445B.235 (“Additional powers of Department...”), which contain 

language indicating the Commission and Department “may” cooperate with local government.

Thus, EPA is proposing to find that Attachment D addresses the requirement of section 110(a)(2)(M) to 

provide for consultation and participation by local political subdivisions affected by the SIP for the 2008 

Pb NAAQS for the entire state.

 

100 77 FR 64737, October 23, 2012.