1 

Proposed Revisions to Nevada’s Clean Air Act Section 110(a)(2)

Plan Submittals as of July 2012

July 2012

The Nevada Division of Environmental Protection (NDEP) submits the following revisions and 

clarifications to Nevada’s existing Clean Air Act (CAA) § 110(a)(2) state plan submittals:

February 1, 2008 submittal, “CAA 110(a)(2)(A)-(M) Requirements in the Current 

Nevada State Implementation Plan (SIP) for 8-Hour Ozone,” (1997 NAAQS);

February 26, 2008 submittal, “CAA 110(a)(2)(A)-(M) Requirements in the Current 

Nevada State Implementation Plan (SIP) for PM2.5,” (1997 NAAQS);

September 15, 2009 submittal, “CAA 110(a)(2)(A)-(M) Requirements in the Current 

Nevada State Implementation Plan (SIP) for PM2.5,” (2006 NAAQS);

December 4, 2009 submittal, “Current CAA 110(a)(2) Requirements in the Washoe 

County’s Portion of the Nevada PM2.5 SIP,” (2006 NAAQS);

October 15, 2011 submittal, (1) “The NDEP Portion of the Nevada Plan to Meet the 

Infrastructure SIP Requirements of the Clean Air Act for the 2008 Lead NAAQS” and (2) 

“The Washoe County Portion of the Nevada State Implementation Plan to Meet the Lead 

Infrastructure SIP Requirements of Clean Air Act Section 110(a)(2).”

The NDEP requests that the U.S. Environmental Protection Agency (USEPA) approves these 

revisions into the Nevada applicable SIP.

To the greatest extent possible, the NDEP also requests that the USEPA apply any and all 

provisions that may provide support from this submittal to future USEPA actions on CAA 

110(a)(2) requirements for all NAAQS pollutants. The NDEP further requests that generally as 

statutes and regulations in Nevada’s applicable SIP are replaced or removed through subsequent 

USEPA approvals of SIP revisions submitted by the NDEP, USEPA also replace or remove 

those provisions in this submittal and all of Nevada’s CAA 110(a)(2) SIPs. 

Section 110(a) 

Element Revisions to Nevada’s Existing 110(a)(2) SIP Submittals

§110(a)(2)(C)

The NDEP has full delegation of the federal prevention of significant deterioration of air 

quality (PSD) program (40 CFR §52.21). The NDEP maintains that 40 CFR §52.1485 (b),

“Regulation for preventing significant deterioration of air quality. The provisions of 

§ 52.21 except paragraph (a)(1) are incorporated and made a part of the applicable 

State plan for the State of Nevada except for that portion applicable to the Clark 

County Health District.”

incorporates the federal PSD provisions into the applicable Nevada SIP, thereby satisfying 

USEPA’s reading of the CAA to require that Nevada’s PSD program be in Nevada’s state plan.

§110(a)(2)(D) As noted in element C above, the NDEP has full delegation of the federal PSD program, and 

40 CFR § 52.1485 incorporates the provisions of § 52.21 into the applicable Nevada SIP. The 

consultation and public notice provisions in the applicable Nevada SIP are listed under 
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Section 110(a) 

Element Revisions to Nevada’s Existing 110(a)(2) SIP Submittals

elements J and M of the NDEP’s 110(a)(2) submittals (listed at the beginning of this 

document). Nevada’s PSD program and these provisions fully address the public notice 

requirements in this element.

§110(a)(2)(E)

(i) The NDEP is submitting Attachment A as a SIP revision to replace Section 12, “Resources,” 

of the 1972 SIP. Attachment A addresses the funding and personnel requirements of this 

element. 

(ii): CAA § 128 requirements. The NDEP is submitting NRS 232A.020, 281A.150, 281A.160, 

281A.400, 281A.410 and 281A.420 as a SIP revision (Attachment B). These rules address the 

disclosure of conflicts of interest requirement of this element. See NDEP’s analysis of how 

these provisions satisfy the requirement in Attachment C.

§110(a)(2)(F)

(iii): NAC 445B.315(3), submitted to USEPA on January 24, 2011, requires the holder of an 

operating permit to retain all required monitoring data and provides NDEP the authority to 

require any information necessary to determine compliance with conditions of the operating 

permit. NAC 445B.265 requires reporting of monitored emissions, including excess 

emissions. NAC 445B.252 provides the authority to require compliance testing and sampling. 

Compliance inspection reports correlate the reported emissions to the emission limitations 

in the operating permit; these reports are available on site at the NDEP offices for public 

inspection during business hours. Together with NAC 445B.3368 and 445B.346, submitted 

to USEPA on January 24, 2011, the provisions cited above satisfy the element 110(a)(2)(F)(iii) 

requirements for the correlation of emissions from stationary sources with any emission 

limitations or standards established pursuant to the CAA, and the availability of such 

information for public inspection.

§110(a)(2)(J) 

• CAA § 121, Consultation: The NDEP is submitting Attachment D as a SIP revision to replace 

Section 11, “Intergovernmental Relations,” of the 1972 SIP. Attachment D addresses the 

intergovernmental consultation requirements of this element.

• CAA Part C, PSD: As noted under element C, the NDEP has full delegation of the federal 

PSD program, which is made part of Nevada’s applicable SIP per 40 CFR § 52.1485. The 

consultation and public notice provisions in the applicable SIP (as listed under elements J and 

M of the NDEP’s 110(a)(2) submittals noted at the beginning of this document) fulfill the 

public notice requirements of CAA Part C, subchapter I.

• The NDEP is submitting the 2011 codification of NRS 445B.500 to replace the version 

currently included in Nevada’s applicable SIP because this statute was revised in 2011. The 

NDEP is also submitting NRS 445B.503, which contains provisions relevant to consultation 

requirements for local air agencies in counties with populations greater than 700,000.

§110(a)(2)(K) 

The following NAC provisions were submitted to USEPA on January 24, 2011 as a SIP 

revision:

445B.308 Prerequisites and conditions for issuance of certain operating permits; 

compliance with applicable state implementation plan.

445B.310 Environmental evaluation: Applicable sources and other subjects; 

exemption.

445B.311 Environmental evaluation: Contents; consideration of good engineering 

practice stack height.

Together with Nevada’s full delegation of the federal PSD program, as adopted into the 

applicable Nevada SIP through 40 CFR § 52.1485 (see element C above), these regulations 

fully satisfy the requirements of this element.

§110(a)(2)(M) The NDEP is submitting Attachment D as a SIP revision to replace Section 11, 
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Section 110(a) 

Element Revisions to Nevada’s Existing 110(a)(2) SIP Submittals

“Intergovernmental Relations,” of the 1972 SIP. Attachment C addresses the requirements of 

this element for consultation and participation by local political subdivisions.
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ATTACHMENT A

AIR QUALITY IMPLEMENTATION PLAN FOR THE STATE OF NEVADA

Section 12 - Resources

12.0 Purpose

The purposes of this section of the Nevada State Implementation Plan (SIP) are to update and 

replace section 12 (“Resources”) of the Nevada SIP as approved by U.S. Environmental 

Protection Agency (USEPA) in 1972 [37 Fed. Reg. 10,842 (May 31, 1972)] and to provide the 

necessary assurances that the State of Nevada, Clark County, and Washoe County have adequate 

personnel and funding under State law to carry out the SIP as required under the relevant 

portions of section 110(a)(2)(E)(i) of the Federal Clean Air Act (CAA), as amended in 1990, and 

the applicable SIP regulations in 40 CFR part 51 (“Requirements for Preparation, Adoption, and 

Submittal of Implementation Plans”). 

12.1 Statutory and Regulatory Requirements

CAA section 110(a)(2)(E)(i) requires SIPs to provide:

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, ... under State (and, as 

appropriate, local) law to carry out such implementation plan ... . 

The federal regulations in title 40, part 51, subpart O of the Code of Federal Regulations (40 

CFR part 51, subpart O) (“Miscellaneous Plan Content Requirements”) include requirements for 

SIPs pertaining to funding and personnel. Specifically, 40 CFR 51.280 (“Resources”) requires:

Each plan must include a 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 5-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.

12.2 State of Nevada

Outside Clark County and Washoe County, the primary organization responsible for developing, 

implementing, and enforcing the SIP is the State Department of Conservation and Natural 

Resources (DCNR). Within DCNR, air pollution control responsibilities have been assigned to 

the Nevada Division of Environmental Protection (NDEP). 

The Nevada Legislature has created an account, the “Account for the Management of Air 

Quality,” within the State General Fund that is to be administered by the NDEP. Specifically, 

Nevada Revised Statutes (NRS) section 445B.590 (“Account for the Management of Air 

Quality: Creation and administration; use; interest; payment of claims”) provides that money in 
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the account must be expended to carry out and enforce the statutory air pollution control program 

and any regulations adopted pursuant to that program. Among other functions, money from the 

account is to be used to defray the direct and indirect costs of preparing regulations and 

recommendations for legislation regarding those provisions, reviewing and acting upon 

applications for permits, enforcing the terms and conditions in permits, monitoring emissions and 

ambient air quality, preparing inventories and tracking emissions, and performing modeling, 

analyses and demonstrations. 

The Account for the Management of Air Quality is replenished from various sources, including 

permit fees. 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. Per NRS 445B.300(4), all administrative fees collected by 

the SEC pursuant to NRS section 445B.300(2) must be accounted for separately and deposited in 

the State General Fund for credit to the Account for the Management of Air Quality. The SEC 

has adopted a fee regulation that imposes one-time fees, e.g., for permit application review, and 

annual fees on permit holders. See Nevada Administrative Code (NAC) section 445B.327 

(“Fees; late penalty”).

The Nevada Legislature has created a second account within the State General Fund, the 

Pollution Control Account, to provide funding for air quality management and control. See NRS 

section 445B.830 (“Fees to be paid to Department of Motor Vehicles; expenditure of money in 

Account; quarterly distributions to local governments; annual reports by local governments; 

grants; creation and duties of advisory committee; submission and approval of proposed grants”). 

Under NRS section 445B.830, the Department of Motor Vehicles charges fees in connection 

with administration of the State’s motor vehicle inspection and maintenance (I/M) program and 

deposits the fees into the Pollution Control Account. Such fees are then allotted to various State 

and local agencies, including the NDEP, for air pollution control purposes. 

A third source of funding for the NDEP’s air programs is CAA section 103 under which USEPA 

is authorized to make grants to air pollution control agencies for research and development 

activities, and section105 under which USEPA is authorized to make grants to air pollution 

control agencies to defray a portion of the costs associated with implementation of programs for 

the prevention and control of air pollution and achievement of the national ambient air quality 

standards. To qualify for section 105 grants in a given year, air pollution control agencies must at 

least maintain the same level of funding from non-Federal funds for air pollution control 

programs as for the preceding year. See CAA section 105(c).

With respect to air quality matters, the NDEP is organized into two bureaus: the Bureau of Air 

Quality Planning (BAQP) and the Bureau of Air Pollution Control (BAPC). BAQP is responsible 

for such activities as ambient air quality monitoring, emissions inventory preparation, and air 

quality planning and modeling studies. BAPC is responsible for such activities as air quality 

permitting, compliance and enforcement. The Nevada Legislature approves the funding and 

personnel resources for BAQP and BAPC every two years. BAQP/BAPC receives funding from 

permit fees, Nevada Department of Motor Vehicle fees, and federal grants, as described above. 
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The budget allocated to the BAQP/BAPC varies from year to year but has been in the $6 to $7 

million range over the past four years. The most recent budget (State Fiscal Year 2011) exceeds

$6 million with 54 approved full-time equivalent staff positions in the air programs. 

12.3 Clark County

State law provides that the district board of health, county board of health or board of county 

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

the control of air pollution (excluding certain types of power plants), and administer the program 

within its jurisdiction unless superseded. See NRS 445B.500. For Clark County, the Nevada 

Governor has designated the Clark County Board of County Commissioners (BOCC) as the 

regulatory, enforcement and permitting authority for implementing applicable provisions of the 

Federal Clean Air Act, any amendments to that Act, and any regulations adopted pursuant to that 

Act within Clark County. The Nevada Governor has also designated the Board of County 

Commissioners of Clark County as the lead agency responsible for coordinating the preparation 

of implementation plans for Clark County. With respect to air pollution control, the BOCC acts 

through the Clark County Department of Air Quality (DAQ).

The 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). Clark 

County fees are set forth in Clark County Air Quality Regulations Section 18 (“Permit and 

Technical Service Fees”). In addition to fees charged for permits and technical services, Clark 

County DAQ relies on grants issued by USEPA under CAA sections 103 and 105, state grants 

from the Pollution Control Account per NRS section 445B.830, regional transportation 

commission tax revenues as established by NRS section 377A.090, and funds from the Federal 

Congestion Mitigation and Air Quality Program. The BOCC approves the budgets for Clark 

County DAQ on an annual basis. The Clark County DAQ has a budget for Fiscal Year 2011-

2012 of approximately $28.7 million and has 105 full-time equivalent staff.

12.4 Washoe County

As noted above, State law provides that the district board of health, county board of health or 

board of county commissioners in each county whose population is 100,000 or more shall 

establish a program for the control of air pollution (excluding certain types of power plants) and 

administer the program within its jurisdiction unless superseded. For Washoe County, the 

Nevada Governor has designated the District Board of Health of the Washoe County Health 

District (WCDBOH) as the regulatory, enforcement and permitting authority for implementing 

applicable provisions of the Federal Clean Air Act, any amendments to that Act, and any 

regulations adopted pursuant to that Act within Washoe County. With respect to air pollution 

control, the WCDBOH acts through the Washoe County Health District’s Air Quality 

Management Division (AQMD).

As discussed above in connection with Clark County, the WCDBOH has the authority and duty 

under state law to charge appropriate fees and WCDBOH does so through District Board of 

Health Regulations Governing Air Quality Management section 030.300 et seq (“Fees and Fee 

Schedules”). In addition to permit fees, Washoe County AQMD relies on grants issued by 

USEPA under CAA sections 103 and 105, Nevada Department of Motor Vehicle fees, and funds 
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from the City of Reno, the City of Sparks, and Washoe County via an inter-local agreement 

(“Interlocal Agreement Concerning the Washoe County District Health Department”) among the 

WCDBOH, City of Reno, City of Sparks, and Washoe County. The Washoe County Board of 

County Commissioners is responsible for approving the budget for the Washoe County AQMD. 

Washoe County AQMD has a Fiscal Year 2011-2012 budget of approximately $2.1 million and 

has 19 allocated full-time staff.

12.5 Evaluation of Resource Requirements

The NDEP, Clark County DAQ, and Washoe County AQMD have been administering, 

implementing, and enforcing air programs designed to meet the CAA’s SIP requirements for 

over 40 years, and the funding and personnel described above for each of the three agencies is 

adequate to meet the needs of these programs. Over the next five years, current funding and 

personnel levels are expected to remain stable via the funding mechanisms described above and 

to be sufficient to meet the resource needs of the agencies for air pollution control purposes over 

that period.
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ATTACHMENT B

The NDEP requests that the USEPA approve the following Nevada Revised Statutes (NRS) into 

the Nevada applicable SIP. Note that NRS 445B.500 is currently in the Nevada applicable SIP; 

we are requesting that USEPA replace that version with the more current 2001 codification, 

because that statute was revised in 2011.

Statutes for Inclusion in Nevada’s ASIP

 NRS 232A.020 Residency requirement for appointment; terms of members; vacancies; qualification of 

member appointed as representative of general public; gubernatorial appointee prohibited from serving on 

more than one board, commission or similar body.

 1. Except as otherwise provided in this section, a person appointed to a new term or to fill a vacancy on a board, 

commission or similar body by the Governor must have, in accordance with the provisions of NRS 281.050, 

actually, as opposed to constructively, resided, for the 6 months immediately preceding the date of the appointment:

 (a) In this State; and

 (b) If current residency in a particular county, district, ward, subdistrict or any other unit is prescribed by the 

provisions of law that govern the position, also in that county, district, ward, subdistrict or other unit.

 2. After the Governor’s initial appointments of members to boards, commissions or similar bodies, all such 

members shall hold office for terms of 3 years or until their successors have been appointed and have qualified.

 3. A vacancy on a board, commission or similar body occurs when a member dies, resigns, becomes ineligible to 

hold office or is absent from the State for a period of 6 consecutive months.

 4. Any vacancy must be filled by the Governor for the remainder of the unexpired term.

 5. A member appointed to a board, commission or similar body as a representative of the general public must be 

a person who:

 (a) Has an interest in and a knowledge of the subject matter which is regulated by the board, commission or 

similar body; and

 (b) Does not have a pecuniary interest in any matter which is within the jurisdiction of the board, commission or 

similar body.

 6. The Governor shall not appoint a person to a board, commission or similar body if the person is a member of 

any other board, commission or similar body.

 7. The provisions of subsection 1 do not apply if:

 (a) A requirement of law concerning another characteristic or status that a member must possess, including, 

without limitation, membership in another organization, would make it impossible to fulfill the provisions of 

subsection 1; or

 (b) The membership of the particular board, commission or similar body includes residents of another state and 

the provisions of subsection 1 would conflict with a requirement that applies to all members of that body.

 (Added to NRS by 1977, 1176; A 2005, 1581; 2011, 2992)

 NRS 281A.150 “Public employee” defined. “Public employee” means any person who performs public duties 

under the direction and control of a public officer for compensation paid by the State or any county, city or other 

political subdivision.

 (Added to NRS by 1985, 2121; A 2009, 1047)—(Substituted in revision for NRS 281.436)

 NRS 281A.160 “Public officer” defined.

 1. “Public officer” means a person elected or appointed to a position which:

 (a) Is established by the Constitution of the State of Nevada, a statute of this State or a charter or ordinance of 

any county, city or other political subdivision; and

 (b) Involves the exercise of a public power, trust or duty. As used in this section, “the exercise of a public power, 

trust or duty” means:

 (1) Actions taken in an official capacity which involve a substantial and material exercise of administrative 

discretion in the formulation of public policy;

 (2) The expenditure of public money; and

 (3) The administration of laws and rules of the State or any county, city or other political subdivision.
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 2. “Public officer” does not include:

 (a) Any justice, judge or other officer of the court system;

 (b) Any member of a board, commission or other body whose function is advisory;

 (c) Any member of a special district whose official duties do not include the formulation of a budget for the 

district or the authorization of the expenditure of the district’s money; or

 (d) A county health officer appointed pursuant to NRS 439.290.

 3. “Public office” does not include an office held by:

 (a) Any justice, judge or other officer of the court system;

 (b) Any member of a board, commission or other body whose function is advisory;

 (c) Any member of a special district whose official duties do not include the formulation of a budget for the 

district or the authorization of the expenditure of the district’s money; or

 (d) A county health officer appointed pursuant to NRS 439.290.

 (Added to NRS by 1985, 2121; A 1987, 2093; 1999, 883; 2001, 658, 1955, 2288; 2003, 116; 2005, 2302; 2009, 

1047)—(Substituted in revision for NRS 281.4365)

 NRS 281A.400 General requirements; exceptions. A code of ethical standards is hereby established to govern 

the conduct of public officers and employees:

 1. A public officer or employee shall not seek or accept any gift, service, favor, employment, engagement, 

emolument or economic opportunity which would tend improperly to influence a reasonable person in the public 

officer’s or employee’s position to depart from the faithful and impartial discharge of the public officer’s or 

employee’s public duties.

 2. A public officer or employee shall not use the public officer’s or employee’s position in government to secure 

or grant unwarranted privileges, preferences, exemptions or advantages for the public officer or employee, any 

business entity in which the public officer or employee has a significant pecuniary interest, or any person to whom 

the public officer or employee has a commitment in a private capacity to the interests of that person. As used in this 

subsection:

 (a) “Commitment in a private capacity to the interests of that person” has the meaning ascribed to “commitment 

in a private capacity to the interests of others” in subsection 8 of NRS 281A.420.

 (b) “Unwarranted” means without justification or adequate reason.

 3. A public officer or employee shall not participate as an agent of government in the negotiation or execution of 

a contract between the government and any business entity in which the public officer or employee has a significant 

pecuniary interest.

 4. A public officer or employee shall not accept any salary, retainer, augmentation, expense allowance or other 

compensation from any private source for the performance of the public officer’s or employee’s duties as a public 

officer or employee.

 5. If a public officer or employee acquires, through the public officer’s or employee’s public duties or 

relationships, any information which by law or practice is not at the time available to people generally, the public 

officer or employee shall not use the information to further the pecuniary interests of the public officer or employee 

or any other person or business entity.

 6. A public officer or employee shall not suppress any governmental report or other document because it might 

tend to affect unfavorably the public officer’s or employee’s pecuniary interests.

 7. Except for State Legislators who are subject to the restrictions set forth in subsection 8, a public officer or 

employee shall not use governmental time, property, equipment or other facility to benefit the public officer’s or 

employee’s personal or financial interest. This subsection does not prohibit:

 (a) A limited use of governmental property, equipment or other facility for personal purposes if:

 (1) The public officer who is responsible for and has authority to authorize the use of such property, 

equipment or other facility has established a policy allowing the use or the use is necessary as a result of emergency 

circumstances;

 (2) The use does not interfere with the performance of the public officer’s or employee’s public duties;

 (3) The cost or value related to the use is nominal; and

 (4) The use does not create the appearance of impropriety;

 (b) The use of mailing lists, computer data or other information lawfully obtained from a governmental agency 

which is available to members of the general public for nongovernmental purposes; or

 (c) The use of telephones or other means of communication if there is not a special charge for that use.
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 If a governmental agency incurs a cost as a result of a use that is authorized pursuant to this subsection or would 

ordinarily charge a member of the general public for the use, the public officer or employee shall promptly 

reimburse the cost or pay the charge to the governmental agency.

 8. A State Legislator shall not:

 (a) Use governmental time, property, equipment or other facility for a nongovernmental purpose or for the private 

benefit of the State Legislator or any other person. This paragraph does not prohibit:

 (1) A limited use of state property and resources for personal purposes if:

 (I) The use does not interfere with the performance of the State Legislator’s public duties;

 (II) The cost or value related to the use is nominal; and

 (III) The use does not create the appearance of impropriety;

 (2) The use of mailing lists, computer data or other information lawfully obtained from a governmental 

agency which is available to members of the general public for nongovernmental purposes; or

 (3) The use of telephones or other means of communication if there is not a special charge for that use.

 (b) Require or authorize a legislative employee, while on duty, to perform personal services or assist in a private 

activity, except:

 (1) In unusual and infrequent situations where the employee’s service is reasonably necessary to permit the 

State Legislator or legislative employee to perform that person’s official duties; or

 (2) Where such service has otherwise been established as legislative policy.

 9. A public officer or employee shall not attempt to benefit the public officer’s or employee’s personal or 

financial interest through the influence of a subordinate.

 10. A public officer or employee shall not seek other employment or contracts through the use of the public 

officer’s or employee’s official position.

 (Added to NRS by 1977, 1105; A 1987, 2094; 1991, 1595; 1993, 2243; 1997, 3324; 1999, 2736; 2003, 3388; 

2009, 1053)—(Substituted in revision for NRS 281.481)

 NRS 281A.410 Limitations on representing or counseling private persons before public agencies; 

disclosure required by certain public officers. In addition to the requirements of the code of ethical standards:

 1. If a public officer or employee serves in a state agency of the Executive Department or an agency of any 

county, city or other political subdivision, the public officer or employee:

 (a) Shall not accept compensation from any private person to represent or counsel the private person on any issue 

pending before the agency in which that public officer or employee serves, if the agency makes decisions; and

 (b) If the public officer or employee leaves the service of the agency, shall not, for 1 year after leaving the service 

of the agency, represent or counsel for compensation a private person upon any issue which was under consideration 

by the agency during the public officer’s or employee’s service. As used in this paragraph, “issue” includes a case, 

proceeding, application, contract or determination, but does not include the proposal or consideration of legislative 

measures or administrative regulations.

 2. A State Legislator or a member of a local legislative body, or a public officer or employee whose public 

service requires less than half of his or her time, may represent or counsel a private person before an agency in 

which he or she does not serve. Any other public officer or employee shall not represent or counsel a private person 

for compensation before any state agency of the Executive or Legislative Department.

 3. Not later than January 15 of each year, any State Legislator or other public officer who has, within the 

preceding year, represented or counseled a private person for compensation before a state agency of the Executive 

Department shall disclose for each such representation or counseling during the previous calendar year:

 (a) The name of the client;

 (b) The nature of the representation; and

 (c) The name of the state agency.

 4. The disclosure required by subsection 3 must be made in writing and filed with the Commission on a form 

prescribed by the Commission. For the purposes of this subsection, the disclosure is timely filed if, on or before the 

last day for filing, the disclosure is filed in one of the following ways:

 (a) Delivered in person to the principal office of the Commission in Carson City.

 (b) Mailed to the Commission by first-class mail, or other class of mail that is at least as expeditious, postage 

prepaid. Filing by mail is complete upon timely depositing the disclosure with the United States Postal Service.

 (c) Dispatched to a third-party commercial carrier for delivery to the Commission within 3 calendar days. Filing 

by third-party commercial carrier is complete upon timely depositing the disclosure with the third-party commercial 

carrier.
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 5. The Commission shall retain a disclosure filed pursuant to subsections 3 and 4 for 6 years after the date on 

which the disclosure was filed.

 (Added to NRS by 1977, 1106; A 1991, 1597; 2001, 2289; 2007, 638; 2009, 1054)—(Substituted in revision for 

NRS 281.491)

 NRS 281A.420 Requirements regarding disclosure of conflicts of interest and abstention from voting 

because of certain types of conflicts; effect of abstention on quorum and voting requirements; exceptions.

 1. Except as otherwise provided in this section, a public officer or employee shall not approve, disapprove, vote, 

abstain from voting or otherwise act upon a matter:

 (a) Regarding which the public officer or employee has accepted a gift or loan;

 (b) In which the public officer or employee has a pecuniary interest; or

 (c) Which would reasonably be affected by the public officer’s or employee’s commitment in a private capacity 

to the interest of others,

 without disclosing sufficient information concerning the gift, loan, interest or commitment to inform the public of 

the potential effect of the action or abstention upon the person who provided the gift or loan, upon the public 

officer’s or employee’s pecuniary interest, or upon the persons to whom the public officer or employee has a 

commitment in a private capacity. Such a disclosure must be made at the time the matter is considered. If the public 

officer or employee is a member of a body which makes decisions, the public officer or employee shall make the 

disclosure in public to the chair and other members of the body. If the public officer or employee is not a member of 

such a body and holds an appointive office, the public officer or employee shall make the disclosure to the 

supervisory head of the public officer’s or employee’s organization or, if the public officer holds an elective office, 

to the general public in the area from which the public officer is elected.

 2. The provisions of subsection 1 do not require a public officer to disclose:

 (a) Any campaign contributions that the public officer reported in a timely manner pursuant to NRS 294A.120 or 

294A.125; or

 (b) Any contributions to a legal defense fund that the public officer reported in a timely manner pursuant to NRS 

294A.286.

 3. Except as otherwise provided in this section, in addition to the requirements of subsection 1, a public officer 

shall not vote upon or advocate the passage or failure of, but may otherwise participate in the consideration of, a 

matter with respect to which the independence of judgment of a reasonable person in the public officer’s situation 

would be materially affected by:

 (a) The public officer’s acceptance of a gift or loan;

 (b) The public officer’s pecuniary interest; or

 (c) The public officer’s commitment in a private capacity to the interests of others.

 4. In interpreting and applying the provisions of subsection 3:

 (a) It must be presumed that the independence of judgment of a reasonable person in the public officer’s situation 

would not be materially affected by the public officer’s pecuniary interest or the public officer’s commitment in a 

private capacity to the interests of others where the resulting benefit or detriment accruing to the public officer, or if 

the public officer has a commitment in a private capacity to the interests of others, accruing to the other persons, is 

not greater than that accruing to any other member of the general business, profession, occupation or group that is 

affected by the matter. The presumption set forth in this paragraph does not affect the applicability of the 

requirements set forth in subsection 1 relating to the disclosure of the pecuniary interest or commitment in a private 

capacity to the interests of others.

 (b) The Commission must give appropriate weight and proper deference to the public policy of this State which 

favors the right of a public officer to perform the duties for which the public officer was elected or appointed and to 

vote or otherwise act upon a matter, provided the public officer has properly disclosed the public officer’s 

acceptance of a gift or loan, the public officer’s pecuniary interest or the public officer’s commitment in a private 

capacity to the interests of others in the manner required by subsection 1. Because abstention by a public officer 

disrupts the normal course of representative government and deprives the public and the public officer’s constituents 

of a voice in governmental affairs, the provisions of this section are intended to require abstention only in clear cases 

where the independence of judgment of a reasonable person in the public officer’s situation would be materially 

affected by the public officer’s acceptance of a gift or loan, the public officer’s pecuniary interest or the public 

officer’s commitment in a private capacity to the interests of others.

 5. Except as otherwise provided in NRS 241.0355, if a public officer declares to the body or committee in which 

the vote is to be taken that the public officer will abstain from voting because of the requirements of this section, the 
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necessary quorum to act upon and the number of votes necessary to act upon the matter, as fixed by any statute, 

ordinance or rule, is reduced as though the member abstaining were not a member of the body or committee.

 6. The provisions of this section do not, under any circumstances:

 (a) Prohibit a member of a local legislative body from requesting or introducing a legislative measure; or

 (b) Require a member of a local legislative body to take any particular action before or while requesting or 

introducing a legislative measure.

 7. The provisions of this section do not, under any circumstances, apply to State Legislators or allow the 

Commission to exercise jurisdiction or authority over State Legislators. The responsibility of a State Legislator to 

make disclosures concerning gifts, loans, interests or commitments and the responsibility of a State Legislator to 

abstain from voting upon or advocating the passage or failure of a matter are governed by the Standing Rules of the 

Legislative Department of State Government which are adopted, administered and enforced exclusively by the 

appropriate bodies of the Legislative Department of State Government pursuant to Section 6 of Article 4 of the 

Nevada Constitution.

 8. As used in this section:

 (a) “Commitment in a private capacity to the interests of others” means a commitment to a person:

 (1) Who is a member of the public officer’s or employee’s household;

 (2) Who is related to the public officer or employee by blood, adoption or marriage within the third degree of 

consanguinity or affinity;

 (3) Who employs the public officer or employee or a member of the public officer’s or employee’s 

household;

 (4) With whom the public officer or employee has a substantial and continuing business relationship; or

 (5) Any other commitment or relationship that is substantially similar to a commitment or relationship 

described in subparagraphs (1) to (4), inclusive, of this paragraph.

 (b) “Public officer” and “public employee” do not include a State Legislator.

 (Added to NRS by 1977, 1106; A 1987, 2095; 1991, 1597; 1995, 1083; 1997, 3326; 1999, 2738; 2003, 818, 

1735, 3389; 2007, 3372; 2009, 1055, 1057)—(Substituted in revision for NRS 281.501)

 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.

 1. Except as otherwise provided in this section and in NRS 445B.310:

 (a) The district board of health, county board of health or board of county commissioners in each county whose 

population is 100,000 or more shall establish a program for the control of air pollution and administer the program 

within its jurisdiction unless superseded.

 (b) The program:

 (1) Must include, without limitation, standards for the control of emissions, emergency procedures and 

variance procedures established by ordinance or local regulation which are equivalent to or stricter than those 

established by statute or state regulation;

 (2) May, in a county whose population is 700,000 or more, include requirements for the creation, receipt and 

exchange for consideration of credits to reduce and control air contaminants in accordance with NRS 445B.508; and

 (3) Must provide for adequate administration, enforcement, financing and staff.

 (c) The 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 NRS 445B.100 to 445B.640, inclusive, and the Federal 

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 Federal Act.

 (d) Powers and responsibilities provided for in NRS 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.

 2. The local air pollution control board shall carry out all provisions of NRS 445B.215 with the exception that 

notices of public hearings must be given in any newspaper, qualified pursuant to the provisions of chapter 238 of 

NRS, once a week for 3 weeks. The notice must specify with particularity the reasons for the proposed regulations 

and provide other informative details. NRS 445B.215 does not apply to the adoption of existing regulations upon 

transfer of authority as provided in NRS 445B.610.

 3. In a county whose population is 700,000 or more, the local air pollution control board may delegate to an 

independent hearing officer or hearing board its authority to determine violations and levy administrative penalties 
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for violations of the provisions of NRS 445B.100 to 445B.450, inclusive, and 445B.500 to 445B.640, inclusive, or 

any regulation adopted pursuant to those sections. If such a delegation is made, 17.5 percent of any penalty collected 

must be deposited in the county treasury in an account to be administered by the local air pollution control board to a 

maximum of $17,500 per year. The money in the account may only be used to defray the administrative expenses 

incurred by the local air pollution control board in enforcing the provisions of NRS 445B.100 to 445B.640, 

inclusive. The remainder of the penalty must be deposited in the county school district fund of the county where the 

violation occurred and must be accounted for separately in the fund. A school district may spend the money received 

pursuant to this section only in accordance with an annual spending plan that is approved by the local air pollution 

control board and shall submit an annual report to that board detailing the expenditures of the school district under 

the plan. A local air pollution control board shall approve an annual spending plan if the proposed expenditures set 

forth in the plan are reasonable and limited to:

 (a) Programs of education on topics relating to air quality; and

 (b) Projects to improve air quality, including, without limitation, the purchase and installation of equipment to 

retrofit school buses of the school district to use biodiesel, compressed natural gas or a similar fuel formulated to 

reduce emissions from the amount of emissions produced by the use of traditional fuels such as gasoline and diesel 

fuel,

 which are consistent with the state implementation plan adopted by this State pursuant to 42 U.S.C. §§ 7410 and 

7502.

 4. Any county whose population is less than 100,000 or any city may meet the requirements of this section for 

administration and enforcement through cooperative or interlocal agreement with one or more other counties, or 

through agreement with the State, or may establish its own program for the control of air pollution. If the county 

establishes such a program, it is subject to the approval of the Commission.

 5. No district board of health, county board of health or board of county commissioners may adopt any 

regulation or establish a compliance schedule, variance order or other enforcement action relating to the control of 

emissions from plants which generate electricity by using steam produced by the burning of fossil fuel.

 6. As used in this section, “plants which generate electricity by using steam produced by the burning of fossil 

fuel” means plants that burn fossil fuels in a boiler to produce steam for the production of electricity. The term does 

not include any plant which uses technology for a simple or combined cycle combustion turbine, regardless of 

whether the plant includes duct burners.

 (Added to NRS by 1971, 1199; A 1973, 1819; 1975, 1126, 1782; 1977, 1559; 1979, 546; 1985, 291; 1991, 2161; 

1993, 175; 1997, 1999; 1999, 1976; 2001, 1296, 1515; 2003, 44; 2007, 319; 2011, 1262)

 NRS 445B.503 Local air pollution control board in county whose population is 700,000 or more: 

Cooperation with regional planning coalition and regional transportation commission; prerequisites to 

adoption or amendment of plan, policy or program.

 1. In addition to the duties set forth in NRS 445B.500, the local air pollution control board in a county whose 

population is 700,000 or more shall cooperate with the regional planning coalition and the regional transportation 

commission in the county in which it is located to: 

 (a) Ensure that the plans, policies and programs adopted by each of them are consistent to the greatest extent 

practicable. 

 (b) Establish and carry out a program of integrated, long-range planning that conserves the economic, financial 

and natural resources of the region and supports a common vision of desired future conditions.

 2. Before adopting or amending a plan, policy or program, a local air pollution control board shall:

 (a) Consult with the regional planning coalition and the regional transportation commission; and

 (b) Conduct hearings to solicit public comment on the consistency of the plan, policy or program with:

 (1) The plans, policies and programs adopted or proposed to be adopted by the regional planning coalition 

and the regional transportation commission; and

 (2) Plans for capital improvements that have been prepared pursuant to NRS 278.0226.

 3. As used in this section:

 (a) “Local air pollution control board” means a board that establishes a program for the control of air pollution 

pursuant to NRS 445B.500.

 (b) “Regional planning coalition” has the meaning ascribed to it in NRS 278.0172.

 (c) “Regional transportation commission” means a regional transportation commission created and organized in 

accordance with chapter 277A of NRS.

 (Added to NRS by 1999, 1975; A 2011, 1264)
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Analysis from the Nevada Division of Environmental Protection, Clark County,

and the Washoe County Health District Regarding Nevada’s Ethics in Government Statutes

as Applied to Section 128 of the Clean Air Act

The U.S. Environmental Protection Agency (“EPA”) has asked the State of Nevada, Clark County and 

Washoe County to set forth Nevada’s Ethics in Government statutes and explain how those statutes may 

address the conflict of interest provision in section 128 of the Clean Air Act (“CAA”). This issue has arisen 

in the context of EPA’s review of Nevada’s infrastructure state implementation plan (“I-SIP”) for the 

1997 ozone national ambient air quality standards (“NAAQS”), and EPA has raised the issue with respect 

to Clark and Washoe Counties, as it reviews the Nevada I-SIP. This memorandum from the Nevada 

Division of Environmental Protection (“NDEP”), Clark County, and the Washoe County Health District 

addresses how Nevada’s Ethics in Government provisions comply with the intent of Section 128 of the 

CAA.

Section 128 of the CAA provides:

State boards1

(a) Not later than the date one year after August 7, 1977, each applicable 

implementation plan shall contain requirements that:

(1) any board or body which approves permits or enforcement orders under 

this chapter 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 this chapter, 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.

A State may adopt any requirements respecting conflicts of interest for such boards 

or bodies or heads of executive agencies, or any other entities which are more 

stringent than the requirements of paragraph (1) and (2), and the Administrator 

shall approve any such more stringent requirements submitted as part of an 

implementation plan. 

42 USC § 7428. EPA has provided a memorandum dated March 2, 1978 with an attached model letter 

and suggested definitions (the “1978 Memo”) to provide non-binding guidance in interpreting Section 

128. The 1978 Memo provides that the goal of the conflict of interest requirement “is generally aimed at 

assuring that decisions to issue permits or enforcement orders neither be nor appear to be influenced 

by the private interests of individual decision makers.” It also provides “suggested” definitions for 

 

1

Arguably, Section 128 applies only to states, not local government entities. 
C-4 

“board or body”, “majority of members”, “represent the public interest”, and “significant portion of 

income.”

State Environmental Commission of Nevada

Nevada Revised Statute (“NRS”) 445B.200 establishes the composition of the State Environmental 

Commission (“SEC”). The SEC is designated as the board that hears appeals of permit approvals and 

enforcement orders. Five members of the SEC are designated as heads of state agencies who are 

employed full-time as public officers. One is from State Board of Health. The Governor must appoint five 

others, three of which must have certain expertise. One must be an engineering or building contractor, 

one must have experience in mining reclamation, and one must have experience as a conservation 

advocate. NRS 445B.200.

This statute complies with Section 128 of the Clean Air Act for the following reasons. First, six of the 

eleven members already represent the public interest. Not only are five of them persons who work forty 

or more hours per week to protect the public interest, but each of them are public officers as defined by 

Nevada Ethics in Government statutes. NRS 281A.020 sets forth the legislative findings and declarations 

for the Ethics and Government statutes. It provides:

1. It is hereby declared to be the public policy of this State that:

(a) A public office is a public trust and shall be held for the sole benefit of the 

people.

(b) A public officer or employee must commit himself or herself to avoid conflicts 

between the private interests of the public officer or employee and those of the 

general public whom the public officer or employee serves.

NRS 281A.160 goes on to define “public officer” as “a person elected or appointed to a position which: 

(a) Is established by the Constitution of the State of Nevada, as statute of this State or a charter or 

ordinance of any county, city or other political subdivision; and (b) Involves the exercise of a public 

power, trust or duty.” The “exercise of a public power, trust or duty” is defined as: “(1) Actions taken in 

an official capacity which involve a substantial and material exercise of administrative discretion in the 

formulation of public policy; (2) The expenditure of public money; and (3) The administration of laws 

and rules of the State or any county, city or other political subdivision.” NRS 281A.160(1)(b). The 

members of the SEC are defined by state statute as public officers, and, therefore, must follow the 

Ethics in Government laws.

In addition, two of the five Governor’s appointees are statutorily precluded from having any pecuniary 

interest in matters that come within the jurisdiction of the SEC. Section 232A.020(5) provides:

A member appointed to a board, commission or similar body as a representative of 

the general public must be a person who:

(a) Has an interest in and a knowledge of the subject matter which is regulated by 

the board, commission or similar body; and

(b) Does not have a pecuniary interest in any matter which is within the jurisdiction 

of the board, commission or similar body.

Thus, two of the Governor’s appointees are appointed to represent the “general public interest” and are 

precluded from having a pecuniary interest in any matter within the jurisdiction of the SEC.
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To assert that those persons do not represent the public interest because they do not fit within the 

“suggested” definition from the 1978 Memo seems to be an overly strict interpretation of Section 128 

and what it intended to accomplish. EPA seems to suggest that a person does not represent the public 

interest if he or she has a “controlling interest in” or serves as an attorney, consultant, officer or director 

of, or has any other contractual relationship with “any person subject to permits or enforcement orders 

under the Clean Air Act or any trade or business association of which such a person is a member.” 1978 

Memo. If one were to strictly construe that language, the fact that a board member contracted with a 

contractor to pave his or her driveway would render him or her unfit to represent the public interest. 

Moreover, that “suggested” definition conflates “public interest” with pecuniary interest because it 

defines “public interest” as not having a significant pecuniary interest in a person who may come before 

the board. That would render the two requirements set forth in Section 128 of the CAA into one 

requirement. It is a tenet of statutory construction that a statute not be read so as to render any part of 

it meaningless. The suggested definition for “represent the public interest” is simply untenable.

Certainly, it is within reason to expect that a person who serves the public interest by working over forty 

hours a week for the public interest (such as the directors of the various executive agencies who by 

statute sit on the SEC) “represent[s] the public interest” as intended by the Clean Air Act. One need only 

look at the mission statements for each of the agencies to understand that the persons in those 

positions represent the public interest.2

While the agency heads who sit by statute on the SEC are already public officers, the Governor’s 

appointees become public officers by virtue of their appointment in accordance with NRS 281A.160. In 

short, all board members are subject to the Ethics in Government statutes in NRS Chapter 281A. NRS 

281A.400 precludes any member from accepting “any gift, service, favor, employment, engagement, 

emolument or economic opportunity which would tend improperly to influence a reasonable person in 

the public officer’s or employee’s position to depart from the faithful and impartial discharge of the 

public officer’s or employee’s public duties.” Nor may the public officer use his or her position to secure 

“unwarranted privileges, preferences, exemptions or advantages for the public officer or employee, any 

business entity in which the public officer or employee has a significant pecuniary interest, or any 

persons to whom the public officer or employee has a commitment in a private capacity to the interests 

of that person.” NRS 281A.400(2). That test is an objective one – the reasonable person standard –

rather than a subjective one. It precludes any member of the SEC from using the position to the 

member’s economic benefit.

Thus, the majority of SEC members represent the public interest and cannot have a significant pecuniary 

interest in matters before the board. If they do, they are required to disclose that fact and recuse 

themselves from participation in that matter. NRS 281A.420. Furthermore, as a practical matter, the SEC 

sits as panel of three members to hear appeals. The members have already determined whether they 

must recuse themselves before sitting on the panel.

Clark County Hearing Board

 

2

See http://forestry.nv.gov/; http://www.ndow.org/about/; http://water.nv.gov/; http://agri.nv.gov/AboutUs.htm; 

http://minerals.state.nv.us/aboutus_mission.htm; http://health.nv.gov/BOH.htm. 
C-6 

In Clark County, the Control Officer has been delegated the authority to issue or approve permits. For 

decades, Clark County and the predecessor agency in the county, the Southern Nevada Health District,3

have used the local hearing board to hear appeals of the Control Officer’s permitting actions. NRS 

445B.275 authorizes the governing body of the county to create a local hearing board and establishes 

the required makeup of the board. It states:

1. The governing body of any district, county or city authorized to operate 

an air pollution control program pursuant to NRS 445B.100 to 445B.640, inclusive, 

may appoint an air pollution control hearing board.

2. The air pollution control hearing board appointed by a county, city or 

health district must consist of seven members who are not employees of the State 

or any political subdivision of the State. One member of the hearing board must be 

an attorney admitted to practice law in Nevada, one member must be a professional 

engineer licensed in Nevada and one member must be licensed in Nevada as a 

general engineering contractor or a general building contractor as defined in NRS 

624.215. Three must be appointed for a term of 1 year, three must be appointed for 

a term of 2 years and one must be appointed for a term of 3 years. Each succeeding 

term must be for a period of 3 years.

A Nevada county has only that authority provided by statute, which means that Clark County generally 

cannot add or remove provisions in its exercise of statutory authority. In particular, Clark County may 

exercise its authority to appoint a hearing board, and the hearing board must be composed of seven 

members who meet the qualifications found in NRS 445B.275(2). There is no additional language in the 

statute that would authorize Clark County to include additional requirements.

According to the 1978 Memo, the term “board or body” in Section 128 “includes any individual,4agency, 

board, committee, council, department, or other state, local, or regional instrumentality authorized to 

approve permits or enforcement orders under the Clean Air Act, in the first instance or on appeal.” 

Although the term “approve” is not separately defined in the memo, the suggested definition of “board 

or body” indicates that EPA believes an appeal is part of the approval process and, therefore, any board 

or body that hears appeals is subject to Section 128. From the discussions with EPA, it appears that EPA 

would require a SIP submittal to demonstrate compliance with Section 128 that would include 

additional criteria to determine the composition of the hearing board. At a minimum, it appears that 

EPA would require the following criteria: that a majority of members of the board or body “represent 

the public interest and do not derive any significant portion of their income from persons subject to 

permits or enforcement orders” pursuant to the Clean Air Act. EPA may also require the incorporation of 

language from the suggested definitions in the 1978 Memo.

Combining this interpretation with the interpretations of “public interest” and “significant portion,” 

shows that EPA’s overall interpretation goes beyond the meaning of the plain language in Section 128 

and produces a potentially absurd result. Section 128 requires that a majority of the members of the 

board or body represent the public interest and do not derive a significant portion of income from 

persons subject to permits or enforcement orders. The1978 Memo, on the other hand, states:

 

3 While the Southern Nevada Health District was formerly known as the Clark County Health District, it has always 

been a separate legal entity from Clark County. 

4 During the recent discussions, EPA Region 9 has indicated that EPA no longer includes the term “individual” as 

part of the “board or body” definition. 
C-7 

“Represent the public interest” means does not own a controlling interest in, have 

5% or more of his or her capital invested in, serve as attorney for, act as consultant 

for, serve as officer or director of, or hold any other official or contractual 

relationship with any person subject to permits or enforcement orders under the 

Clean Air Act or any trade or business association or which such a person is a 

member.

This interpretation encompasses just about anyone associated with the regulated community subject to 

the Clean Air Act. The 1978 Memo also states:

“Significant portion of income” means 10 percent or more of gross personal income 

for a calendar year, including retirement benefits, consultant fees, and stock 

dividends, except that it shall mean 50 percent of gross personal income for a 

calendar year if the recipient is over 60 years of age and is receiving such portion 

pursuant to retirement, pension, or similar arrangement. . . . “

This suggested definition potentially covers anyone employed by or formerly employed by anyone in the 

regulated community subject to the Clean Air Act. Essentially, the board or body could never have a 

majority of members who have or who have ever had an economic or business relationship with any 

person within the regulated community. On the other hand, the 1978 Memo indicates that Section 128 

would allow a majority of members on a board or body from conservation groups. For a more stringent

requirement, the 1978 Memo suggests that “[s]ome States may want to consider adopting additional 

provisions for selection of some number of board members from lists submitted by state conservation 

leagues, by a panel of representatives of environmentally concerned public interest groups, or by some 

similar mechanism.” Presumably, persons who are conservationists would represent the public interest 

within the meaning of Section 128 and would not derive any significant portion of their income from the 

regulated community.

As discussed above, the Control Officer approves or issues operating permits. Once that action is taken, 

the permit is valid and the action is complete. As the regulator, it makes sense that the Control Officer 

does not have any economic or business relationship with anyone in the regulated community. The 

regulator must be separate from the regulated. This holds true for a board or body that acts as the 

regulator and has the authority to approve or issue operating permits. However, even in this situation, it 

appears that the 1978 Memo still goes too far in its interpretation. The term “income” can have a 

particular meaning that does not include money received from retirement benefits or investments. By 

defining “income” so broadly, adherence to the “suggested” definition would, at the very least, require 

that certain potential appointees to the hearing board be filtered out if they were retired or owned 

stock in a particular company regulated by the Clean Air Act. A more reasonable interpretation of the 

term “income” in Section 128 is a reference to someone who currently receives compensation, through 

employment or by contract, from a person in the regulated community.

As stated above, while it makes sense that Section 128 would require a board or body that approves and 

issues permits and enforcement orders to be economically separate and apart from the regulated 

community, this logic breaks down once extended to a board or body that hears appeals. As indicated 

above, an appeal is not part of the approval process. A permit, once issued by the Control Officer, is 

valid and enforceable. The purpose of an appeal is not to approve and issue an operating permit. 

Instead, the hearing board is quasi-judicial, and its members must act in a fair and impartial manner. The 
C-8 

main purpose of the hearing is to provide due process to the person who applied for the permit and 

allow that person as well as other “aggrieved”5persons with a mechanism to test the adequacy of the 

regulator’s decision. See NRS 445B.360. For a board hearing appeals to function properly, each member 

must be willing and able to be fair and impartial. If, based on a particular real or perceived conflict of 

interest, the member cannot act in a fair and impartial manner, then that member must not participate 

in that particular proceeding. However, recusal in one proceeding does not mean that member could 

not act fairly and impartially in another proceeding.

For a quasi-judicial board, it is illogical to attempt to manage the composition of the board for one type 

of potential bias without managing all other types of potential bias. In other words, the board or body 

that hears appeals should not be stacked with conservationists; nor should it be stacked with people 

associated with the regulated community. It is also nonsensical to presume that such a large group of 

individuals, i.e. anyone associated economically, past or present, with persons subject to permits and 

enforcement orders under the Clean Air Act, would be so unable to set aside their supposed bias in

favor of the regulated community that they could not be trusted to make up the majority of a board or 

body hearing appeals. Given the purpose of an appeals board and the difference between an appeals 

board and a board that acts in a regulatory capacity, a more common sense interpretation of Section 

128 is that it applies to a board or body that actually approve and issue permits, but not to a board or 

body that hears permit appeals.

This interpretation should also extend to enforcement orders. In Clark County, the Control Officer may 

issue orders for corrective action, and a hearing officer issues orders regarding violations. Both of these 

types of orders may be appealed to the hearing board. However, an appeal is not necessary to make 

either type of order final and valid. Because a hearing officer is not a “board or body” or the “head of an 

executive agency,” Section 128 doesn’t apply to the hearing officer’s actions. For all the reasons 

discussed above, Section 128 does not apply to the hearing board because the hearing board does not 

approve or issue enforcement orders, but instead, acting in a quasi-judicial capacity, renders decisions 

on appeals.

Section 128, by its plain language, does not apply to boards or bodies that hear appeals of permits or 

enforcement orders. Therefore, the Section 128 conflict of interest requirements are not applicable to 

the hearing board, and the SIP does not need to contain such requirements. Section 128(a)(2) does 

apply to the Control Officer. Therefore, the SIP must contain disclosure requirements applicable to the 

Control Officer. There has been discussion about submitting the applicable provisions of NRS Chapter 

281A for SIP approval. As set forth above, NRS Chapter 281A already applies to the Control Officer and 

contains conflict of interest requirements which satisfy the requirement of Section 128.

The Washoe County Health District

The Washoe County Health District (“WCHD”) is a special district created pursuant to Chapter 439 of the 

Nevada Revised Statutes and by the interlocal agreement of the City of Reno, the City of Sparks, and the 

County of Washoe, Nevada. Washoe County District Board of Health Regulations Governing Air Quality

Management (“AQR”) 010.023. The WCHD is required by law to establish a program for the control of 

air pollution and administer the program within its jurisdiction. NRS 445B.500. It is designated as the air 

pollution control agency of the district. NRS 445B.500.

 

5 Before someone can become “aggrieved,” a definitive and final action has to occur, further indication that the 

approval of a permit is distinct from the appeal of a permit. 
C-9 

The WCHD is governed by a board of health. Pursuant to NRS 439.390, the composition of the Washoe 

County District Board of Health is as follows:

1. A district board of health must consist of two members from each county, city or 

town which participated in establishing the district, to be appointed by the governing 

body of the county, city or town in which they reside, together with one additional 

member to be chosen by the members so appointed.

2. The additional member must be a physician licensed to practice medicine in this 

State.

3. If the appointive members of the district board of health fail to choose the additional 

member within 30 days after the organization of the district health department, the 

additional member may be appointed by the State Health Officer.

The interlocal agreement between the cities and county further clarifies that one member appointed by 

each jurisdiction would be an elected member of that jurisdiction. The Reno City Council, Sparks City 

Council, and Washoe County Board of Commissioners each appoint two members, and those six 

members select the seventh member. Three of the city/county members are elected officials, who 

represent the interest of their constituents, who are members of the public. The seventh member, the 

physician member, is subject to the licensing requirements of NRS Chapter 630 and to oversight by the 

Nevada Board of Medical Examiners. NRS 630.130. As a licensed physician, that member is also guided 

by the Ethics Code of the American Medical Association. American Medical Association website, 

available at http://www.ama-assn.org.

All of the members of the District Board of Health are public officers, as defined by NRS 281A.160, and 

therefore represent the public interest in the exercise of public power, trust or duty. Unlike other boards 

that are limited in jurisdiction to air quality matters, the District Board of Health has jurisdiction over all 

public health matters in the district except Emergency Management Services. NRS 439.410. Thus, the 

District Board of Health represents the public interest in all public health matters. Moreover, the mission 

of the Washoe County Health District is to “protect[] and enhance[] the quality of life for all citizens of 

Washoe County through providing health promotion, disease prevention, public health emergency 

preparedness, and environmental services.” Washoe Co. Health Dist. Website, available at 

http://www.co.washoe.nv.us/health/dbh/mission.html.

Furthermore, District Board of Health members are subject to the same pecuniary interest prohibitions 

as described above. NRS 281A.400. They are also subject to the same disclosure and recusal 

requirements set forth in NRS 281A.420. Therefore, by virtue of the same analysis as applied to 

members of the SEC, the District Board of Health satisfies the requirements of Section 128 of the Clean 

Air Act.

In the Washoe County Health District, the Control Officer, defined as the District Health Officer or 

designee issues permits and issues orders of enforcement. Anyone aggrieved by an action of the Control 

Officer has the option to appeal the decision. The WCHD also utilizes an intermediate hearing board. 

The Washoe County Air Pollution Control Hearing Board hears appeals of permit actions and 

enforcement orders. AQR 020.025; 020.0251. However, it is merely an advisory board to the Washoe 

County District Board of Health, which makes final decisions regarding such appeals. AQR 020.0051(P); 

020.053-054. Since the Hearing Board does not approve permits or enforcement orders, it does not 

come within the purview of Section 128 of the Clean Air Act. The Board of Health is the decision making 
C-10 

authority but as stated above its statutorily required composition and requirement to comply with the 

provisions of NRS 281A satisfy the requirements of Section 128 of the Clean Air Act.

Conclusion

In summary, the Ethics in Government statutes address the concerns of Section 128 of the CAA and 

apply to all three hearing boards that hear air quality and compliance matters in Nevada.
D-1 

ATTACHMENT D

AIR QUALITY IMPLEMENTATION PLAN FOR THE STATE OF NEVADA

Section 11 - Intergovernmental Consultation

11.0 Purpose

The purposes of this section of the Nevada State Implementation Plan (SIP) are to update and 

replace section 11 (“Intergovernmental Relations”) of the Nevada SIP as approved by the U.S. 

Environmental Protection Agency (USEPA) in 1972 [37 Fed. Reg. 10,842 (May 31, 1972)] and 

to provide for intergovernmental consultation as required under the relevant portions of section 

110(a)(2)(J) and section 110(a)(2)(M) of the Federal Clean Air Act (CAA), as amended in 1990, 

and the applicable SIP regulations in 40 CFR part 51 (“Requirements for Preparation, Adoption, 

and Submittal of Implementation Plans”). 

11.1 Statutory and Regulatory Requirements

CAA section 110(a)(2)(J) requires SIPs to meet the applicable requirements of section 121 

(relating to consultation). CAA section 121 in turn requires that:

In carrying out the requirements of this Act requiring applicable implementation 

plans to contain—

(1) any transportation controls, air quality maintenance plan requirements 

or preconstruction review of direct sources of air pollution, or

(2) any measure referred to—

(A) in part D (pertaining to nonattainment requirements), or 

(B) in part C (pertaining to prevention of significant deterioration), 

and in carrying out the requirements of section 113(d) (relating to certain 

enforcement orders),6the State shall provide a satisfactory process of 

consultation with general purpose local governments, designated organizations of 

elected officials of local governments and any Federal land manager having 

authority over Federal land to which the State plan applies, effective with respect 

to any such requirement which is adopted more than one year after the date of 

enactment of the Clean Air Act Amendments of 1977 as part of such plan. Such 

process shall be in accordance with regulations promulgated by the 

Administrator to assure adequate consultation. The Administrator shall update as 

necessary the original regulations required and promulgated under this section 

(as in effect immediately before the date of the enactment of the Clean Air Act 

Amendments of 1990) to ensure adequate consultation. Only a general purpose 

unit of local government, regional agency, or council of governments adversely 

affected by action of the Administrator approving any portion of a plan referred 

 

6

 Sections 113(d) and 121 were added to the CAA in 1977. The CAA was significantly amended in 1990, and a 

process in the SIP for consultation in connection with state enforcement orders under section 113(d) is no longer 

required because section 113(d), as amended in 1990, no longer relates to state enforcement orders.
D-2 

to in this subsection may petition for judicial review of such action on the basis of 

a violation of the requirements of this section.

CAA section 110(a)(2)(M) requires SIPs to:

(M) provide for consultation and participation by local political subdivisions 

affected by the plan.

The federal regulations at 40 CFR 51 Subpart M (“Intergovernmental Consultation”) include 

requirements pertaining to consultation. 40 CFR 51.240 (“General Plan Requirements”) requires 

states to identify relevant implementing organizations. It reads as follows:

Each 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.

40 CFR 51.241(a) (“Nonattainment areas for carbon monoxide and ozone”) requires Governors 

to certify the organization responsible for developing the revised plan for a carbon monoxide or 

ozone nonattainment area. It reads as follows:

For each AQCR or portion of an AQCR in which the national primary standard 

for carbon monoxide or ozone will not be attained by July 1, 1979, the Governor 

(or Governors for interstate areas) shall certify, after consultation with local 

officials, the organization responsible for developing the revised implementation 

plan or portions thereof for such AQCR.

11.2 Statewide Overview

Under state law, the State Department of Conservation and Natural Resources (DCNR) is 

designated as the Air Pollution Control Agency of the State of Nevada for the purposes of the 

Federal Clean Air Act insofar as it pertains to state programs. See Nevada Revised Statutes 

(NRS) section 445B.205.7The State Environmental Commission (SEC) has been established 

within the DCNR to, among other purposes, adopt regulations to prevent, abate and control air 

pollution.

Within the DCNR, the Division of Environmental Protection (NDEP) has the 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 the letter from Allen Biaggi, Director, Nevada DCNR, to Wayne 

Nastri, Regional Administrator, USEPA Region IX, dated May 30, 2007 and included herein as 

Exhibit 11-1.

State law provides that the district board of health, county board of health or board of county 

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

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

 

7 Approved by USEPA at 72 Fed. Reg. 11 (January 3, 2007).
D-3 

See NRS section 445B.500.8Two counties, Clark and Washoe, meet the population threshold 

and have developed their own air programs. Outside these two counties, the NDEP is 

responsible for developing, implementing, and enforcing the SIP. In addition, state law provides 

one exception to the general assignment of air program responsibilities to counties whose 

populations are 100,000 or more. The exception is for plants that burn fossil fuels in a boiler to 

produce steam for the production of electricity. Boilers at such power plants, regardless of their 

location within the state, are subject to exclusive NDEP jurisdiction. See NRS section 445B.500, 

subsections (5) and (6). Lastly, the DCNR, through the SEC and the NDEP, retains the authority 

to administer air programs in Clark and Washoe Counties if such county-administered programs 

are found by the SEC to be inadequate. See NRS section 445B.520.9

In carrying out the State’s air programs, the NDEP is authorized to cooperate with appropriate 

federal officers and agencies of the Federal Government, other states, interstate agencies, local 

governmental agencies and other interested parties in all matters relating to air pollution control 

in preventing or controlling the pollution of the air in any area. See NRS section 445B.235.10 As 

authorized under state law, the NDEP has taken the initiative to coordinate with local 

governments concerning air quality planning matters outside of Clark and Washoe Counties. See 

the Pahrump Valley Clean Air Action Plan Memorandum of Understanding, at 

http://ndep.nv.gov/baqp/monitoring/pahrumpmonitor2.html (click on “MOU” in the section 

called “Preferred Option”), as an example of NDEP coordination with local governmental 

agencies in addressing air pollution issues that arise.

Permits for New or Modified Stationary Sources

Under a delegation agreement with USEPA Region IX, the NDEP has agreed to implement and 

enforce the federal regulations for the Prevention of Significant Deterioration (PSD) found in 

title 40, part 52, section 21 of the Code of Federal Regulations (40 CFR 52.21). The most recent 

delegation agreement took effect on September 15, 2011. Under the delegation agreement, the 

NDEP provides for early notice to, and consultation with, federal land managers of proposed 

new major sources or major modifications that could impact “Class I” areas, i.e., areas for which 

the ambient air quality standards have traditionally been met and for which the least amount of 

deterioration is allowed under CAA requirements for PSD. See 40 CFR 52.21(p). For other PSD 

sources, the NDEP provides notice and opportunity to comment on draft permits for new major 

sources and major modifications to affected county air pollution control districts and city and 

county agencies where the proposed source would be located and to any comprehensive regional 

land use planning agency and any state, federal land manager, or Indian governing body whose 

lands may be affected by emissions from the proposed source or modification. See 40 CFR 

52.21(q) and 40 CFR 124.10.

With respect to proposed stationary sources and modifications that are not subject to PSD 

requirements, the NDEP provides notice and opportunity to comment to the county air pollution 

control districts if the proposed source or modification would be located within the respective 

counties. See NAC 445B.3395 and NAC 445B.3457.

 

8 Approved by USEPA at 71 Fed. Reg. 51,766 (August 31, 2006).

9 Approved by USEPA at 71 Fed. Reg. 51,766 (August 31, 2006).

10 Approved by USEPA at 71 Fed. Reg. 51,766 (August 31, 2006).
D-4 

11.3 Clark County

As noted above, State law provides that the district board of health, county board of health or 

board of county commissioners in each county whose population is 100,000 or more shall 

establish a program for the control air pollution and administer the program within its 

jurisdiction unless superseded. For Clark County, the Nevada Governor has designated the Clark 

County Board of County Commissioners (BOCC) as the regulatory, enforcement and permitting 

authority for implementing applicable provisions of the CAA, any amendments to that Act, and 

any regulations adopted pursuant to that Act within Clark County. The Nevada Governor has 

also designated the Clark County BOCC as the lead agency responsible for coordinating the 

preparation of implementation plans for Clark County. See Letter from Governor Kenny C. 

Guinn, dated June 21, 2001, which is included herein as Exhibit 11-2. With respect to air 

pollution control, the BOCC acts through the Clark County Department of Air Quality (DAQ).

Under State law, certain specific consultation requirements apply to county agencies in Nevada 

that establish and implement their own air pollution control programs where the population in the 

county is 700,000 or more. See NRS section 445B.503, which is included herein as Exhibit 11-3.

Clark County meets this population threshold, and thus, under NRS 445B.503, the BOCC must 

cooperate with the regional planning coalition and the regional transportation commission in 

Clark County to ensure that the plans, policies, and programs adopted by each of them are 

consistent to the greatest extent possible. Specifically, before adopting or amending an air quality 

plan, policy or program, the BOCC must consult with the regional planning coalition and the 

regional transportation commission. See NRS section 445B.503(2). Within Clark County, the 

regional planning coalition is the Southern Nevada Regional Planning Coalition and the regional 

transportation commission is the Regional Transportation Commission (RTC) of Southern 

Nevada. Members on the Southern Nevada Regional Planning Coalition include representatives 

from Clark County, the cities of Boulder City, Henderson, Las Vegas, and North Las Vegas, and 

Clark County School District. Membership on the Southern Nevada RTC is set by State statute 

and consists of two members from the BOCC, two members from the city council of the largest 

incorporated city (Las Vegas) and one member from the city council of every other incorporated 

city in the county (Boulder City, Henderson, Mesquite, and North Las Vegas).

Permits for New or Modified Stationary Sources

Clark County regulations provide for notice to, and consultation with, federal land managers of 

proposed new major sources or major modifications that could impact “Class I” areas. See Clark 

County Air Quality Regulations (AQR) section 12.2.15. For proposed permit actions involving 

minor sources, Clark County DAQ provides notice and opportunity for comment to officials and 

agencies having jurisdiction over the location where the proposed source or modification would 

be located. See Clark County AQR section 12.1 (effective July 1, 2010), subsection 5.3. For 

major sources, Clark County DAQ specifically provides notice to the chief executives of the city 

and county where the source would be located; any comprehensive regional land use planning 

agency; any state, federal land manager, and Indian governing body whose lands may be affected 

by emissions from the source or modification. See Clark County AQR section 12.2 (amended 

November 16, 2010), subsection 12.2.16.2; and section 12.3 (effective July 1, 2010), subsection 

12.3.8.
D-5 

Transportation Planning and Conformity to the SIP

Federal law requires that regional planning officials prepare both a transportation plan to benefit 

public mobility and an air quality plan to benefit public health. Under the CAA, transportation 

activities that receive federal funding or approval must be fully consistent with the plan 

developed to meet federal clean air standards, i.e., the SIP. Specifically, the CAA prohibits 

federal agencies and metropolitan planning organizations (MPOs) from approving any 

transportation plan, program, or project that fails to conform to the SIP. See CAA section 

176(c). The “transportation conformity” requirements apply within all “nonattainment” and 

“maintenance” areas (i.e., former nonattainment areas that have been redesignated to 

“attainment”) for a national ambient air quality standard, for the pollutant for which the area is

either “nonattainment” or “maintenance.” 

The transportation conformity requirements apply in Clark County based on the status of 

portions of the county as a “maintenance” area for the national ambient air quality standard for 

carbon monoxide, a “nonattainment” area for the national ambient air quality standard for 

particulate matter less than 10 microns in diameter (PM-10), and a “nonattainment” area for the 

1997 national ambient air quality standard for ozone. 11

The MPO in Clark County is the Southern Nevada RTC. The Southern Nevada RTC has 

established an interagency process to ensure that transportation and air quality issues are 

addressed by the various organizations involved in transportation and air quality planning and to 

meet the specific requirements for interagency consultation set forth in 40 CFR 93.105. 

Consultation is required when the Southern Nevada RTC develops or revises a regional 

transportation plan or program or makes a conformity determination and when the Clark County 

DAQ develops or revises the SIP. 

Within Clark County, interagency consultation is implemented through the Conformity Working 

Group, which comprises stakeholder federal, state, and regional agencies. Specifically, the 

Conformity Working Group in Clark County consists of representatives from the USEPA Region 

IX, Federal Highway Administration, Federal Transit Administration, NDEP, Nevada 

Department of Transportation, the Southern Nevada RTC, the Clark County Public Works 

Department, Clark County DAQ, Clark County Department of Aviation, and the cities of Las 

Vegas, North Las Vegas, Henderson, and Boulder City. USEPA has approved Clark County 

DAQ’s Clark County Transportation Conformity Plan (January 2008), which provides specific 

criteria and procedures for interagency consultation for conformity purposes, as part of the 

Nevada SIP. See 73 Fed. Reg. 66,182 (November 7, 2008).

11.4 Lake Tahoe Basin 

Lake Tahoe lies in a basin between crests of the Sierra Nevada and Carson ranges on the 

California-Nevada border at a surface elevation of approximately 6,260 feet above sea level. The 

Lake Tahoe Basin comprises portions of El Dorado and Placer Counties on the California side, 

and State hydrographic area 90 on the Nevada side. Hydrographic area 90 includes the 

 

11 See 75 Fed. Reg. 59,090 (September 27, 2010)(USEPA approval of redesignation request for Las Vegas Valley 

from nonattainment to attainment for the carbon monoxide standard); CAA designations for Nevada with respect to 

the national ambient air quality standards are contained in 40 CFR § 81.329 (see 77 FR 30088 for 2008 ozone 

national ambient air quality standards area designations).
D-6 

southwestern corner of Washoe County and the western-most portions of Carson City and 

Douglas County. The NDEP administers and enforces state air pollution regulations within the 

Carson City and Douglas County portions of the Lake Tahoe Basin, and Washoe County Health 

District administers and enforces District Board of Health air pollution regulations within the 

Washoe County portion of the basin. 

In 1969, to protect and restore the Lake Tahoe environment in the wake of development 

pressures, Congress ratified a compact between the States of California and Nevada and created 

the Tahoe Regional Planning Agency (TRPA). The compact, as revised in 1980 

(http://www.trpa.org/documents/about_trpa/Bistate_Compact.pdf), gave TRPA authority to 

adopt environmental quality standards, called thresholds, and to enforce ordinances designed to 

achieve the thresholds. Seven of TRPA’s Governing Board are from California; seven are from 

Nevada; and there is one non-voting Presidential appointee. The Nevada delegation on TRPA’s 

Governing Board includes appointees by the boards of county commissioners of Douglas and 

Washoe Counties, by the board of supervisors of Carson City, and by the Governor, and includes 

the secretary of State of Nevada (or designee), and the director of the DCNR (or designee), and 

one appointee by the six other members of the Nevada delegation. In 1978, the Governor of 

Nevada designated TRPA as the agency to prepare the 1979 nonattainment plan for oxidants and 

carbon monoxide for the Lake Tahoe Basin. The NDEP and California Air Resources Board 

worked with TRPA to develop the 1979 nonattainment area plan for the Basin; however, 

thereafter the NDEP has taken the lead for air planning matters on the Nevada side of the Basin.

Transportation Planning and Conformity to the SIP

As noted above in connection with Clark County, federal law requires that regional planning 

officials prepare both a transportation plan to benefit public mobility and an air quality plan to 

benefit public health and that certain “transportation conformity” requirements, including those 

related to interagency consultation, apply within nonattainment and maintenance areas. 

The transportation conformity requirements apply within Lake Tahoe Basin based on the status 

of the Basin as a “maintenance” area for the national ambient air quality standard for carbon 

monoxide. See 68 Fed. Reg. 69,611 (final rule redesignating the Nevada side of the Lake Tahoe 

Basin from nonattainment to attainment for the carbon monoxide standard). Although the 

Nevada side of the Basin qualifies as a “limited” maintenance area, transportation conformity 

determinations are still required for transportation plans, programs and projects.

The MPO in the Lake Tahoe Basin is the Tahoe Metropolitan Planning Organization (“TMPO”). 

The jurisdiction of the TMPO covers all areas within the watershed that drains into Lake Tahoe. 

The TMPO board is made up of 16 members. Fifteen of these members are the same members 

that make up the board of the TRPA and there is one representative of the U.S. Forest Service, in 

recognition of the major role this agency plays in transportation provision in the Basin. Six 

members, who are locally elected officials or their designees, represent the units of local 

government. 

In developing the Regional Transportation Plan (RTP) and the Transportation Improvement Plan, 

the TMPO works very closely with other agencies responsible for planning activities within the 

Tahoe Area. Since the TMPO shares its board and staff with the TRPA, there is a close linkage 

between local planning, environmental protection, and the transportation planning that goes into 
D-7 

the RTP. The TMPO has established an interagency process to ensure that transportation and air 

quality issues are addressed by the various organizations involved in transportation and air 

quality planning and to meet the specific requirements for interagency consultation set forth in 

40 CFR 93.105. 

Within the Lake Tahoe Basin, interagency consultation is implemented through the Conformity 

Task Force, which comprises stakeholder federal, state, and regional agencies. Specifically, the 

Conformity Task Force in the Lake Tahoe Basin consists of representatives from the USEPA 

Region IX, Federal Highway Administration, Federal Transit Administration, NDEP, California 

Air Resources Board, Eldorado Air Pollution Control District, Placer County Air Pollution 

Control District, Washoe County Health District, Nevada Department of Transportation, 

California Department of Transportation, Eldorado County Department of Transportation, Placer 

County Public Works Department, Douglas County Community Development, Washoe County 

RTC, TRPA and TMPO.

11.5 Washoe County

As noted above, State law provides that the district board of health, country board of health or 

board of county commissioners in each county whose population is 100,000 or more shall 

establish a program for the control air pollution and administer the program within its 

jurisdiction unless superseded. For Washoe County, the Nevada Governor has designated the 

District Board of Health of the Washoe County Health District (WCDBOH) as the regulatory, 

enforcement and permitting authority for implementing applicable provisions of the CAA, any 

amendments to that Act, and any regulations adopted pursuant to that Act within Washoe 

County. With respect to air pollution control, the WCDBOH acts through the Washoe County 

Health District’s Air Quality Management Division (AQMD).

Under state law, a district board of health must consist of two members from each county, city or 

town that participated in establishing the district, to be appointed by the governing body of the 

county, city or town in which they reside, together with one additional member to be chosen by 

the six members so appointed. See NRS 439.390, included herein as Exhibit 11-4. The additional 

member must be a physician licensed to practice medicine in the State of Nevada. Accordingly, 

the WCDBOH comprises seven members, two each that (one elected official and one nonelected official) represent the city of Reno, the city of Sparks, and Washoe County, and one who 

is a licensed physician. 

Permits for New or Modified Stationary Sources

Under a delegation agreement with USEPA Region IX, the AQMD has agreed to implement and 

enforce the federal PSD regulations found in 40 CFR 52.21. The most recent delegation 

agreement took effect on March 13, 2008. Under the delegation agreement, AQMD provides for 

early notice to, and consultation with, federal land managers of proposed new major sources or 

major modifications that could impact “Class I” areas. See 40 CFR 52.21(p). For other PSD 

sources, the AQMD provides notice and opportunity to comment on draft permits for new major 

sources and major modifications to affected county air pollution control districts and city and 

county agencies where the proposed source would be located and to any comprehensive regional 

land use planning agency and any state, federal land manager, or Indian governing body whose 
D-8 

lands may be affected by emissions from the proposed source or modification. See 40 CFR 

52.21(q) and 40 CFR 124.10.

For new major sources and major modifications that are “major” for a nonattainment pollutant 

within a nonattainment area, AQMD specifically provides for early consultation with any federal 

land manager whose lands may be affected by a proposed source or modification and provides 

for notice to the NDEP, the regional planning authority of Washoe County, local government 

offices, and any Indian governing body whose lands may be affected by the proposed permitting 

action. See WCDBOH Regulations Governing Air Quality Management section 030.506 (revised 

October 25, 1995), paragraphs (D) and (F).

Transportation Planning and Conformity to the SIP

As noted above in connection with Clark County, federal law requires that regional planning 

officials prepare both a transportation plan to benefit public mobility and an air quality plan to 

benefit public health and that certain “transportation conformity” requirements, including those 

related to interagency consultation, apply within nonattainment and maintenance areas. The 

“transportation conformity” requirements apply within all “nonattainment” and “maintenance” 

areas (i.e., former nonattainment areas that have been redesignated to “attainment”) for the 

national ambient air quality standard. 

The transportation conformity requirements apply in Washoe County based on the status of the 

Truckee Meadows portion of the county (i.e., State hydrographic area 87) as a “maintenance” 

area for the national ambient air quality standard for carbon monoxide and as a “nonattainment” 

area for the national ambient air quality standard for particulate matter (PM-10).12

The MPO in Washoe County is the Regional Transportation Commission of Washoe County 

(“Washoe County RTC”). The Washoe County RTC has established an interagency process to 

ensure that transportation and air quality issues are addressed by the various organizations 

involved in transportation and air quality planning and to meet the specific requirements for 

interagency consultation set forth in 40 CFR 93.105. In Washoe County, interagency 

consultation is implemented through the Conformity Working Group, which comprises

stakeholder federal, state, and regional agencies. Specifically, the Conformity Working Group 

consists of representatives from the USEPA Region IX, Federal Highway Administration, 

Federal Transit Administration, NDEP, Nevada Department of Transportation, Washoe County 

RTC, Washoe County District Health Department – Air Quality Management Division, and the 

Truckee Meadows Regional Planning Agency.13

 

12 See 73 Fed. Reg. 38,124 (July 3, 2008)(USEPA approval of redesignation request for Truckee Meadows from 

nonattainment to attainment for the carbon monoxide standard); CAA designations for Nevada with respect to the 

national ambient air quality standards are contained in 40 CFR § 81.329.

13

 See Washoe County RTC’s and AQMD’s “Working Draft,” Washoe County Transportation Conformity Plan, 

September 2011.
D-9 

EXHIBITS TO SECTION 11, INTERGOVERNMENTAL 

CONSULTATION, OF THE NEVADA STATE 

IMPLEMENTATION PLAN

June 2012
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EXHIBIT 11-1
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EXHIBIT 11-2
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