Technical Support Document: 

EPA Evaluation of Nevada Provisions for 

Section 110(a)(2)(E)(ii)/Section 128 

Conflict of Interest Requirements 

Air Division 

U.S. EPA Region 9 

July 2012 
For information on this technical support document, please contact: 

Rory Mays 

Office of Air Planning 

U.S. Environmental Protection Agency – Region 9 

75 Hawthorne Street 

San Francisco, California 94105 

(415) 972-3227 

mays.rory@epa.gov

Charlotte Withey 

Office of Regional Counsel 

U.S. Environmental Protection Agency – Region 9 

75 Hawthorne Street 

San Francisco, California 94105 

(415) 972-3915 

withey.charlotte@epa.gov
1 

Background

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

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

Environmental Protection (NDEP) to address the requirements of Clean Air Act (CAA) sections 

110(a)(2)(E)(ii) and 128. 

CAA Section 110(a)(2)(E)(ii) and 128 Requirements

CAA section 110(a)(2)(E)(ii) refers to the requirements of CAA section 128, which addresses potential 

conflicts of interest with respect to boards, bodies and heads of executive agencies that approve permits 

and enforcement orders issued under the CAA. In 1978, EPA issued a guidance memorandum 

recommending ways that States could meet the requirements of section 128, including suggested 

interpretations of certain terms in section 128.1 EPA has not issued further guidance or regulations of 

general applicability on the subject since that time. However, as part of our proposals on other recent 

infrastructure actions, EPA has proposed certain interpretations of section 128 and invited comment on 

these interpretations. See, e.g., EPA’s proposed rule on infrastructure SIP requirements for Hawaii (77 

FR 21913, 21917-18, April 12, 2012). We are now proposing these same interpretations in relation to 

the Nevada infrastructure SIP.2

Congress added section 128 of the CAA in the 1977 amendments as the result of a conference 

agreement. Titled “State boards,” section 128 provides in relevant part: 

(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 Act] 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 Act], 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. 

We first note that, in the conference report, the committee stated: “It is the responsibility of each State to 

determine the specific requirements to meet the general requirements of [section 128].”3 We think that 

this legislative history indicates that Congress intended states to have some latitude in the specifics of 

implementing section 128, so long as the implementation is consistent with the plain text of the section. 

We also note that Congress explicitly provided in section 128 that States could adopt more stringent 

requirements. As a result, we propose four important considerations for implementing section 128. 

First, section 128 must be implemented through SIP-approved, federally enforceable provisions. Section 

128 explicitly mandates that each SIP “shall contain requirements” that satisfy subsections 128(a)(1) and 

128(a)(2). A mere narrative description of state statutes or rules, or of a state’s current or past practice in 

 

1

See Memorandum from David O. Bickart to Regional Air Directors, “Guidance to States for Meeting Conflict of Interest 

Requirements of Section 128,” Suggested Definitions, March 2, 1978. 

2

If EPA finalizes this action, the proposed interpretations will supersede (to the extent that they are inconsistent with) 

interpretations suggested in the 1978 guidance, at least for Nevada’s SIP. 

3 A Legislative History of the Clean Air Act Amendments of 1977, 95th Congress 2d Session, Volume 3 at 526-527 (August 

1978). 
2 

constituting a board or body and in disclosing potential conflicts of interest, is not a requirement 

contained in the SIP and therefore does not satisfy the plain text of section 128. 

Second, subsection 128(a)(1) applies only to states that have a board or body that is composed of 

multiple individuals and that, among its duties, approves permits or enforcement orders under the CAA. 

It does not apply in states that have no such multi-member board or body, and where instead a single 

head of an agency approves permits or enforcement orders under the CAA. This flows from the text of 

section 128 itself, for two reasons. First, as section 128(a)(1) refers to a majority of members in the 

plural, we think it reasonable to read section 128(a)(1) as not creating any requirements for an individual 

with sole authority for approving a permit or enforcement order under the CAA. Second, subsection 

128(a)(2) explicitly applies to the head of an executive agency with “similar powers” to a board or body 

that approves permits or enforcement orders under the CAA, while subsection 128(a)(1) omits any 

reference to heads of executive agencies. We infer that subsection 128(a)(1) should not apply to heads of 

executive agencies who approve permits or enforcement orders. 

Third, subsection 128(a)(2) applies to all states, regardless of whether the state has a multi-member 

board or body that approves permits or enforcement orders under the CAA. Although the title of section 

128 is “State boards,” the language of section 128(a)(2) explicitly applies where the head of an 

executive agency, rather than a board or body, approves permits or enforcement orders. In instances 

where the head of an executive agency delegates his or her power to approve permits or enforcement 

orders, or where statutory authority to approve permits or enforcement orders is nominally vested in 

another state official, the requirement to disclose adequately potential conflicts of interest still applies. In 

other words, EPA thinks that SIPs for all states, regardless of whether a state board or body approves 

permits or enforcement orders under the CAA, must contain adequate provisions for disclosure of 

potential conflicts of interest. We note that many states have general disclosure provisions, applicable to 

all state employees, that may be adequate, if submitted for adoption into the SIP, to satisfy the 

requirements of subsection 128(a)(2). 

Finally, a state may satisfy the requirements of section 128 by submitting for adoption into the SIP a 

provision of state law that closely tracks or mirrors the language of the applicable provisions of section 

128. A state may do so in two ways. First, the state may adopt the language of subsections 128(a)(1) and 

128(a)(2) verbatim. Under this approach, the state will be able to meet the continuing requirements of 

section 128 without any additional, future SIP revisions, even if the state adds or removes authority, 

either at the state level or local level, to individuals or to boards or bodies to approve permits or 

enforcement orders under the CAA. Second, the state may modify the language of subsections 128(a)(1) 

(if applicable) and 128(a)(2) to name the particular board, body, or individual official with approval 

authority. In this case, if the state subsequently modifies that authority, the state may have to submit a 

corresponding SIP revision to meet the continuing requirements of section 128. While either approach 

would meet the minimum requirements of section 128, we note that the statute explicitly permits states 

to adopt more stringent requirements, for example through providing more detailed definitions of the 

terms in subsections 128(a)(1) and 128(a)(2), such as those suggested in the 1978 guidance 

memorandum. This approach gives states flexibility in implementing section 128, while still ensuring 

consistency with the statute. 

Although they are not binding, both the 1978 Guidance and the interpretations we are currently 

proposing have informed our evaluation of the Nevada SIP in relation to the requirements of section 

128. 
3 

Nevada’s Infrastructure SIP Submittals Addressing CAA Sections 110(a)(2)(E)(ii) and 128 

Nevada has submitted the following SIP revisions pertaining to the infrastructure SIP infrastructure SIP 

requirements for the 1997 ozone, 1997 fine particulate matter (PM2.5), and 2006 PM2.5 national ambient 

air quality standards (NAAQS): 

• February 1, 2008 – “CAA 110(a)(2)(A)-(M) Requirements in the Current Nevada State 

Implementation Plan (SIP) for 8-Hour Ozone” to address infrastructure SIP requirements for the 

1997 ozone NAAQS (“2008 Ozone Submittal”). 

• February 26, 2008 – “CAA 110(a)(2)(A)-(M) Requirements in the Current Nevada State 

Implementation Plan (SIP) for PM2.5” to address infrastructure SIP requirements for the 1997 

PM2.5 NAAQS (“2008 PM2.5 Submittal”). 

• September 15, 2009 – “CAA 110(a)(2)(A)-(M) Requirements in the Current Nevada State 

Implementation Plan (SIP) for PM2.5” to address infrastructure SIP requirements for the 2006 

PM2.5 NAAQS (“2009 PM2.5 Submittal”). 

• December 4, 2009 – “Current CAA 110(a)(2)(A)-(M) Requirements in the Washoe County 

Portion of the Nevada PM2.5 SIP” to address infrastructure SIP requirements for the 2006 PM2.5

NAAQS for the Washoe County portion of the State (“2009 PM2.5 Supplement”). 

• July 5, 2012 – “Revisions to Nevada’s Clean Air Act § 110(a)(2) State Implementation Plan 

Submittals; Parallel Processing Request” to address infrastructure SIP requirements for the 1997 

ozone, 1997 PM2.5, and 2006 PM2.5 NAAQS (“2012 Submittal”).4 This submittal served as a 

supplement to the four infrastructure SIP submittals identified above and was submitted under 

EPA’s parallel processing mechanism provided by 40 CFR Part 51, Appendix V, Section 2.3. 

The submittals of 2008 and 2009 did not specifically address CAA sections 110(a)(2)(E)(ii) and 128. 

However, the 2012 Submittal included the following provisions of state law to address the requirements 

of CAA Sections 110(a)(2)(E)(ii) and 128: 

• From Chapter 232 (“State Departments”): 

o 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”) 

• From Chapter 281A (“Ethics in Government”): 

o NRS 281A.150 (“‘Public employee’ defined”) 

o NRS 281A.160 (“‘Public officer’ defined”) 

o NRS 281A.400 (“General requirements; exceptions”)

o NRS 281A.410 (“Limitations on representing or counseling private persons before public 

agencies; disclosure required by certain public officers.”) 

o 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”).5

In addition, the 2012 Submittal included a letter from Rob Bamford, Chief, Bureau of Air Quality 

Planning, NDEP to Amy Zimpfer, Associate Director, Air Division, U.S. EPA Region 9, enclosing 

Nevada’s “Analysis from the [NDEP], Clark County, and the Washoe County Health District Regarding 

 

4 Letter from Colleen Cripps, PhD, Administrator, NDEP, to Jared Blumenfeld, Regional Administrator, EPA Region IX, 

dated July 5, 2012. 

5

Id. Attachment B. 
4 

Nevada’s Ethics in Government Statutes as Applied to Section 128 of the [CAA]” (“2012 White 

Paper”).6 However, NDEP subsequently clarified that the 2012 White Paper was submitted for 

informational purposes, rather than for approval into the SIP.7 Therefore, while we have reviewed the 

2012 White Paper, we have not specifically relied upon it for our analysis. 

EPA’s Evaluation of the Nevada SIP Under CAA Sections 110(a)(2)(E)(ii) and Section 128 

Applicability of Section 128 

The first step in our analysis consists of identifying boards, bodies and persons responsible for 

approving permits and enforcement orders and determining the applicability of the section 128 

requirements to these entities. Nevada has four heads of executive agencies with authority to approve 

permits and enforcement orders: the Director of the Department of Conservation and Natural Resources, 

the Administrator of NDEP, the Control Officer of Clark County Department of Air Quality (DAQ), and 

the Director of Washoe County Air Quality Management District (AQMD). Clark County has delegated 

the issuance of enforcement orders (penalties) to the role of Hearing Officer. In Washoe County, the 

Branch Chief of the Permits and Compliance Branch within Washoe County AQMD can also approve 

permits and enforcement orders (corrective action) as the designated agent of the Control Officer. Final 

decisions on permit and enforcement order appeals are heard by the following entities for each 

respective jurisdiction: the State Environmental Commission (SEC), the Clark County Air Pollution 

Control Hearing Board (APCHB), and the Washoe County District Board of Health (DBOH). The bases 

for these authorities and the provisions that govern conflict of interest for each entity are described 

below. The applicability of section 128 to each of these entities is summarized in Table 1. 

Table 1: Applicability of Section 128

Jurisdiction Entity Subject to 128(a)(1) for: Subject to 128(a)(2) for: 

State Level DCNR Director n/a Permits & enforcement orders

NDEP Administrator n/a Permits & enforcement orders

SEC – appeals 

Permits & enforcement 

orders 

Permits & enforcement orders

Clark County

Control Officer 

n/a Permits & enforcement orders 

(corrective action) 

Hearing Officer(s) n/a Enforcement orders (penalties)

APCHB – appeals 

Permits & enforcement 

orders 

Permits & enforcement orders

Washoe County 

AQMD Director 

n/a Permits & enforcement orders 

(corrective action) 

AQMD Branch Chief 

n/a Permits & enforcement orders 

(corrective action) 

DBOH – first instance 

(penalties) and appeals (all) 

Permits & enforcement 

orders 

Permits & enforcement orders

 

6

Id. Attachment C. 

7

See email from Mike Elges to Amy Zimpfer, dated July 18, 2012, subject: RE: NV Infrastructure SIP--Conflict of Interest 

Provisions. 
5 

State Level

Under state law, the 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 

Statute (NRS) 445B.205 (2003).

8 Among other things, the Director of DCNR is authorized to issue 

permits and enforcement orders. See NRS 445B.230(1).9 The Director of the DCNR has selected the 

NDEP Administrator as the official designee for the purposes of the CAA, including issuance of permits 

and enforcement orders.10 The DCNR Director and NDEP Administrator’s decisions on permits and 

enforcement orders can be appealed to the SEC. See NRS 445B.360 (2003).11 Under NRS 445B.360(2), 

the SEC “shall affirm, modify, or reverse any action taken by the DCNR Director or NDEP 

Administrator which is the subject of the appeal.”12

Thus, for purposes of CAA section 128 at the state level, the DCNR Director, the NDEP Administrator, 

and the SEC may approve permits and enforcement orders and are subject to the requirements of section 

128. Because the board membership requirements of section 128(a)(1) apply only to boards (i.e., not 

individual decision-makers), the DCNR Director and the NDEP Administrator are subject only to the 

disclosure requirement of section 128(a)(2). The SEC is subject to the disclosure requirements of section 

128(a)(2), as well as the board composition requirements of 128(a)(1). 

County Level

Nevada state law also requires 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.” See 

NRS 445B.500(1) (2003).13 Two counties, Clark and Washoe, meet the population threshold and have 

developed their own air programs. 

Clark County 

For Clark County, the Nevada Governor has designated the Clark County Board of County 

Commissioners (BCC) as the regulatory, enforcement, and permitting authority for implementing 

 

8 NRS 445B.205 (2003) is entitled “Department designated as State Air Pollution Control Agency” and has been approved 

into the applicable SIP at 40 CFR 52.1470(e) (2012). See 72 Federal Register (FR) 11 (January 3, 2007). 

9 NRS 445B.230 (2003) is entitled “Powers and duties of Department” and has been approved into the applicable SIP at 40 

CFR 52.1470(e) (2012). See 72 FR 11 (January 3, 2007). 

10 See letter from Allen Biaggi, Director, Nevada DCNR, to Wayne Nastri, Regional Administrator, EPA Region IX, dated 

May 30, 2007. This letter was submitted for approval into the SIP as part of the July 5, 2012 parallel processing request. 

11 NRS 445B.360 (2003) is entitled “Appeals to Commission: Appealable matters; action by Commission; regulations” and 

has been approved into the applicable SIP at 40 CFR 52.1470(e) (2012). See also 72 FR 11 (January 3, 2007). 

12 Under NRS 445B.360, if the DCNR Director or NDEP Administrator approves a permit or enforcement order, and that 

decision is appealed, then the SEC shall affirm, modify, or reverse such action. We interpret the SEC’s action to affirm or 

modify a permit or enforcement order as an “approval” within the meaning of section 128 (i.e., the permit or enforcement 

order can then take effect). Alternatively, if the DCNR Director or NDEP Administrator denies a permit or enforcement 

order, and that decisions is appealed, then the SEC has power to reverse that action to approve the permit or enforcement 

order. We interpret such a reversal as approval within the meaning of section 128. 

13 NRS 445B.500 (2003) is entitled “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.” The 2003 version of NRS 445B.500 has been approved into the 

applicable SIP at 40 CFR 52.1470(e) (2012). See 71 FR 51766 (August 31, 2006). NDEP submitted a revised version of NRS 

445B.500 in its 2012 Submittal, but the revisions are not pertinent to this analysis. 
6 

applicable provisions of the CAA within Clark County. See Letter from Governor Kenny C. Guinn, 

dated June 21, 2001, which was included in Nevada’s 2012 Supplement. With respect to air pollution 

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

County Code defines the Control Officer, as per Code 9.08.030 (“Definitions”), as the Director of Clark 

County DAQ14and delegates certain permitting and enforcement responsibilities to the Control Officer. 

See, e.g. Clark County Code 9.08.100 (“Air Quality Control Officer – Appointment”), which establishes 

the Control Officer’s general power, duties, and authority. 

Consistent with NRS 445B.500(3),15which allows the Clark County BCC (as the local air pollution 

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

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

for violations,” the BCC has delegated certain enforcement authorities to Hearing Officers. See, e.g. 

CCR section 7.4.1.2.1, which describes the Hearing Officer’s authority to levy penalties for violations.16

Pursuant to CCR section 7.3, Hearing Officers act in an individual capacity and independently of each 

other, and therefore do not constitute a “board or body.” 

In Clark County, the BCC is authorized under NRS section 445B.275 to appoint an air pollution control 

hearing board that hears appeals of the same type as those heard by the SEC.17 The BCC has established 

an Air Pollution Control Hearing Board (APCHB) to take action on appeals of, among other things, 

permit actions and enforcement orders. See CCR section 7 (“Air Pollution Control Hearing Board and 

Hearing Officer”).18 NRS 445B.500(1)(d) provides that: 

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. 

Among the powers and responsibilities that are binding upon and inure to the benefit of the local air 

pollution control authorities, including the APCBH, are the appeals authorities provided by NRS 

445B.360. Accordingly, the APCBH, like the SEC, has the authority to affirm, modify, or reverse any 

action taken by the Clark County Control Officer (for appeals of permits or corrective action orders) or 

the Hearing Officer (for appeals of administrative penalties). 

Thus, for purposes of CAA section 128 in Clark County, the Control Officer, Hearing Officers, and 

APCHB may approve permits and enforcement orders and are subject to the requirements of section 

128. Furthermore, because the board membership requirements of section 128(a)(1) apply only to boards 

(i.e., not individual decision-makers), the Control Officer and Hearing Officers are subject only to the 

disclosure requirements of section 128(a)(2). The APCBH is subject to both the disclosure requirements 

of 128(a)(2) and the board composition requirements of 128(a)(1). 

 

14 On March 6, 2012, the Clark County BCC changed the name of the Department of Air Quality and Environmental 

Management (as referenced in Clark County Code 9.08.030) to Department of Air Quality (DAQ). 

15 The 2003 version of NRS 445B.500 has been approved into the applicable SIP at 40 CFR 52.1470(e) (2012). See 71 FR 

51766 (August 31, 2006). NDEP submitted a revised version of NRS 445B.500 in its 2012 Submittal, which revised the 

population threshold under NRS 445B.500(3) from 400,000 to 700,000 for the BCC’s authority to delegate certain 

enforcement authorities to a hearing officer or hearing board. 

16 CCR Section 7 is entitled “Air Pollution Control Hearing Board and Hearing Officer.” 

17 NRS 445B.275 (2003) is entitled “Creation; members; terms” and has been approved into the applicable SIP at 40 CFR 

52.1470(e) (2012). See 71 FR 51766 (August 31, 2006). 

18 Appeals of decisions by the Control Officer and Hearing Officers go to the APCHB. Thus, under CCR section 7, the BCC 

itself has no role in approving permits or enforcement orders. 
7 

Washoe County

For Washoe County, the Nevada Governor has designated the District Board of Health (DBOH) of the 

Washoe County Health District as the regulatory, enforcement and permitting authority for 

implementing applicable provisions of the CAA within Washoe County. With respect to air pollution 

control, the Washoe County DBOH acts through the Washoe County AQMD within the Washoe County 

Health District. Similar to Clark County, the Control Officer (i.e., the Director of Washoe County 

AQMD) has been delegated certain permitting and enforcement responsibilities. See, e.g. Washoe 

County Air Quality Regulation (AQR) 020.020 (“Control Officer – Powers and Duties”) and AQR 

020.030 (“Notice of Violation”), which describe the Control Officer’s authorities and duties with respect 

to issue corrective action orders and to request that the DBOH levy administrative fines.19 The Control 

Officer’s designated agent for these permitting and enforcement responsibilities, as provided by AQR 

020.020, is the Branch Chief of the Permits and Compliance Branch within Washoe County AQMD. 

In Washoe County, the DBOH is authorized under NRS section 445B.275 to appoint an air pollution 

control hearing board that hears appeals of the same type as those heard by the SEC. The DBOH has 

established an Air Pollution Control Hearing Board (APCBH) to take action on appeals of, among other 

actions, permit actions and enforcement orders. See AQR 020.0251 (“Hearing Board – Jurisdiction”), 

paragraph A. However, unlike Clark County, Washoe County AQR section 020.0251(D) provides that, 

after receiving evidence and conducting a hearing as to all proper matters brought before the Washoe 

County APCHB, the APCHB shall forward its findings and recommendations to the Washoe County 

DBOH for final decision. Thus, the DBOH may approve permits or enforcement orders, on appeal, 

under the CAA. 

As with Clark County, among the powers and responsibilities that are binding upon and inure to the 

benefit of the local air pollution control authorities, including the DBOH, are the appeals authorities 

provided by NRS 445B.360. Accordingly, the DBOH, like the SEC, shall affirm, modify, or reverse any 

action taken by the Washoe County Control Officer or the Chief of the Permitting and Compliance 

Branch of Washoe County AQMD (for appeals of permits or corrective action orders), or the DBOH 

itself (for appeals of administrative penalties). 

Thus, for purposes of CAA section 128 in Washoe County, the Control Officer and DBOH may approve 

permits and enforcement orders and are subject to the requirements of section 128. Because the board 

membership requirements of section 128(a)(1) apply only to boards (i.e., not individual decisionmakers), the Control Officer is subject only to the disclosure requirements of section 128(a)(2). The 

DBOH is subject to both the disclosure requirements of 128(a)(2) and the board composition 

requirements of 128(a)(1). 

Evaluation of Provisions Governing Board Membership for CAA Section 128(a)(1) 

Section 128(a)(1) contains two separate requirements applicable to any board or body which approves 

permits or enforcement orders under the CAA. First, a majority of members of the board or body must 

“represent the public interest” (“public interest” requirement). Second, a majority of members must “not 

derive any significant portion of their income from persons subject to permits or enforcement orders 

 

19 The current versions of 020.020 and 020.030 are not in the SIP. We refer to them here to clarify the applicability of section 

128’s requirements, but we have not relied on them in our evaluation of the SIP. 
8 

under [the CAA]” (“significant income” requirement). In this section, we assess whether each of the 

relevant boards and bodies in Nevada meets these two requirements. 

As described in the section above, the boards in Nevada that approve permits and enforcement orders 

are the SEC, the Clark County APCHB, and the Washoe County DBOH, each of which may hear permit 

and enforcement order appeals and shall affirm, modify, or reverse any action taken by the executive 

heads, or their delegates or designated agents, in each respective jurisdiction. Such boards are subject to 

the board membership requirements of section 128(a)(1). The specific provisions of Nevada’s Ethics in 

Government Laws submitted as SIP revisions as part of the 2012 Submittal are relevant to the 

requirements of CAA section 128(a)(1). Our analysis of the state’s provisions appears below. 

Board composition

NRS 445B.200 (2003) establishes the compositional requirements of the SEC, namely that it consists of 

(a) the Director of the Department of Wildlife; (b) the State Forester Firewarden; (c) the State Engineer; 

(d) the Director of the State Department of Agriculture; (e) the Administrator of the Division of 

Minerals of the Commission on Mineral Resources; (f) a member of the State Board of Health to be 

designated by that Board; and (g) five members appointed by the Governor, one of whom is a general 

engineering contractor or a general building contractor and one of whom possesses expertise in 

performing mining reclamation.20

NRS 445B.275 (“Creation; members; terms”) establishes the compositional requirements of the Clark 

County APCHB – it shall consist of seven members who are not employees of the State or any political 

subdivision of the State and each member shall be appointed by the relevant county, city, or health 

district (i.e., the Clark County BCC, in this case).21 One member must be an attorney licensed in Nevada 

and one member must be licensed in Nevada as a general engineering contractor or a general building 

contractor as defined by State law.

22

 

NRS 439.390 (“NRS 439.390 District board of health: Composition; qualifications of members”)

establishes the general compositional requirements of the Washoe County DBOH and an Inter-local 

Agreement Concerning the Washoe County District Health Department, as revised in 1993 and 

submitted as a SIP revision as part of the 2009 PM2.5 Supplement, specifies further membership 

requirements. Pursuant to NRS 439.390 and the Inter-Local Agreement, the DBOH consists of seven 

members: two representing the city of Reno, two representing the city of Sparks, two representing 

Washoe County, and a physician licensed to practice medicine in the state of Nevada. 

Definition of public officers and public employees

In order to establish the applicability of Nevada’s Ethics in Government Laws to individuals responsible 

for approving permits and enforcement orders, the state has submitted the following two definitions for 

approval into the SIP: 

 

20 NRS 445B.200 (2003) is entitled “Creation and composition; Chair; quorum; compensation of members and employees; 

disqualification; technical support” and has been approved into the applicable SIP at 40 CFR 52.1470(e) (2012). See 72 FR 

11 (January 3, 2007). The current (2012) version of NRS 445B.200 also requires one of the Governor’s appointees to possess 

experience as a conservation advocate. However, this requirement has not been submitted to EPA for incorporation into the 

SIP. 

21 NRS 445B.275 has been approved into the applicable SIP at 40 CFR 52.1470(e). See 71 FR 51766 (August 31, 2006). 

22 While CCR section 7 establishes the Clark County APCHB, it does not include any additional requirements concerning 

qualifications for members of the hearing board. 
9 

NRS 281A.150 provides that: 

“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. 

NRS 281A.160 provides that: 

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. 

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. 

Approval of permits or enforcement orders under state or county law involves an exercise of a public 

power, trust or duty and thus fulfills the second prong of the “public officer” definition. In addition, each 

of the following individuals also meets the first prong of the public officer definition because each is 

appointed to a position established by state or county law, as follows: 

 

• the DCNR Director and NDEP Administrator (position established by Nevada statute); 

• the members of the SEC (position established by Nevada statute); 

• the Clark County Control Officer (position established by Clark County Code); 

• the Clark County Hearing Officers and the members of the Clark County APCHB (positions 

established by statute and county regulation); 

• the Washoe County Control Officer (position established by Washoe County Code);and 

• the Washoe County DBOH (positions established by statute). 

 

Finally, the Chief of the Permitting and Compliance Branch of Washoe AQMD is a public employee 

because she performs public duties under the direction of the Washoe County Control Officer. 

Thus, all those individuals that approve permits and enforcement orders in the first instance or on appeal 

(as a member of a board) in Nevada are considered public officers or public employees under NRS 

281A. This definition is an important foundation to other statutes under NRS 281A, as discussed below. 
10 

Provisions Addressing Requirements of CAA Section 128(a)(1) 

NRS 281A.400 establishes a code of ethical standards requirements applicable to all public officers and 

thus to all the members of the SEC, the Clark County APCHB, and the Washoe County DBOH 

(hereinafter, collectively “board members”). For the reasons set forth below, we propose to find that the 

provisions of NRS 281A.400 address both the “public interest” and “significant income” requirements 

of CAA section 128(a)(1). 

“Public interest” 

Of particular relevance to the “public interest” requirement of CAA section 128(a)(1), NRS 

281A.400(2) provides that: 

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. 

 

NRS 281A.420(8) in turn defines “commitment in a private capacity to the interests of others” as: 

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. 

 

In short, NRS 281A.400(2) prohibits board members from granting or securing preferential treatment for 

themselves or for other individuals or business in whom they have a significant pecuniary or other 

private interest. 

In addition, NRS 281A.400(4) prohibits board members from accepting “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.” This provision thus ensures 

that board members will not receive any income for their duties as a board member from a private 

individual or company subject to a permit or enforcement order under the CAA. 

We propose to determine that these two provisions effectively ensure that, in making decisions on 

appeals of permits and enforcement orders under the CAA, all board members will represent the public 
11 

interest rather than any private interests. 

In addition, with respect to the SEC in particular, we note that, NRS 232A.020(5) provides that: 

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. 

This provision provides additional assurances that a majority of the members of the SEC represent the 

public interest. 

 

Provisions for “Significant Income”

With respect to the “significant income” requirement of CAA section 128(a)(1), NRS 281A.400(1) 

provides that: 

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. 

While this provision does not specifically refer to permits or enforcement orders, the authority to 

approve permits and enforcement orders under the CAA and the laws of the state or county clearly falls 

within the meaning “public duty.” The requirements of NRS 281A.400(1), therefore, apply to board 

members in their roles as public officers acting on appeals of permits or enforcement orders. 

 

In addition, although NRS 281A.400(1) does not use the words “significant income,” it does refer to 

numerous different types of income, namely: gifts, employment opportunities, engagements, 

emoluments and economic opportunities. Any such income that is “significant” in size and is received 

from a person subject to a permit or enforcement order under the CAA would inherently “tend 

improperly to influence a reasonable person to depart from the faithful and impartial discharge of the 

public officer’s or employee’s public duties.” Thus, NRS 281A.400(1) effectively prohibits all board 

members from receiving significant income from persons subject to permit or enforcement order under 

the CAA during their tenure on the board. 

 

Provisions Governing Disclosure for CAA Section 128(a)(2) 

Two provisions of NRS 281A relate address the disclosure requirements of Section 128(a)(2). NRS 

281A.420 provides, in relevant part, that: 

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 
12 

(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. 

Thus, at the time a matter (such as a permit application or enforcement order) is considered, public 

officers and employees, including all those individuals that approve permits and enforcement orders in 

the first instance or on appeal (as a member of a board) in Nevada, must disclose sufficient information 

concerning gifts, loans, interests, or commitments in a private capacity to inform the public of the 

potential effect of those interests on their action.23 For members of boards, including the SEC, the Clark 

County APCHB, and the Washoe County DBOH, the disclosure must be made in public to the chair and 

other members of the board. For individuals that approve permits and enforcement orders, such 

disclosures must be made to the supervisory head of their respective organizations. 

In addition, NRS 281A.410 contains an additional disclosure requirement as follows: 

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. 

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

 

23 NRS 281A.420(2) indicates that public officers need not disclose campaign contributions or contributions to legal defense 

funds that the public officer reported in a timely manner pursuant to statutes under NRS 294 (“Campaign Practices”). Thus, 

while there is an exemption from the disclosure requirements of NRS 281A.420, such disclosures must still be made under 

the State’s campaign practice laws. Furthermore, the only positions to whom this exemption may apply among the entities 

subject to CAA section 128 are three of the seven members of the Washoe County DBOH that are elected officials (one each 

from the city of Reno, city of Sparks, and Washoe County). 
13 

the date on which the disclosure was filed. 

This provision requires public officers to disclose on an annual basis all cases where they represented or 

counseled a private person for compensation before a state agency. 

We propose to determine that the provisions of NRS 281A.150, 281A.160, 281A.410, and 281A.420 

meet the disclosure requirement of section 128(a)(2) with respect to all entities in Nevada that approve 

permits and enforcement orders. 

Conclusions 

We propose to approve the following provisions into the Nevada SIP, as they strengthen the SIP with 

respect to the conflict of interest requirements of CAA section 128: 

• NRS 232A.020 

• NRS 281A.150 

• NRS 281A.160 

• NRS 281A.400 

• NRS 281A.410 

• NRS 281A.420 

Contingent on approval of NRS 232A.020, 281A.150, 281A.160, and NRS 281A.400 into the Nevada 

SIP, we propose to determine that the Nevada SIP will meet the “public interest” and “significant 

income” requirements of CAA section 128(a)(1) with respect to the SEC, Clark County APCHB, and 

Washoe County DBOH. 

Contingent on approval of NRS 281A.150, 281A.160, 281A.410, and 281A.420 into the SIP, we 

propose to determine that the Nevada SIP will meet the disclosure requirement of section 128(a)(2) with 

respect to all those entities in Nevada that approve permits and enforcement orders, as identified above 

in the applicability section of this TSD.

For infrastructure SIP purposes, we recommend approval of Nevada’s 2008 Ozone Submittal, 2008 

PM2.5 Submittal, 2009 PM2.5 Submittal, 2009 PM2.5 Supplement, and the 2012 Submittal for the 1997 

ozone, 1997 PM2.5, and 2006 PM2.5 NAAQS for section 110(a)(2)(E)(ii).