The Nevada Division of Env

(

) 

g 

clarifications to Nevada’s existing Clean Air Act (CAA) § I l0(a)(2) state plan submittals:

• February 1, 2008 submittal, “CAA 11 0(a)(2)(A)-(M) Requirements in the Current

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

• February 26, 2008 submittal, “CAA 1 l0(a)(2)(A)-(M) Requirements in the Current

Nevada State Implementation Plan (SIP) for PM25,”(1997 NAAQS);

• September 15, 2009 submittal, “CAA I 10(a)(2)(A)-(M) Requirements in the Current

Nevada State Implementation Plan (SIP) for PM25,”(2006 NAAQS);

• December 4, 2009 submittal, “Current CAA 11 0(a)(2) Requirements in the Washoe

County’s Portion of the Nevada PM2,5SIP,” (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 llO(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 USBPA apply any and all

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

11 0(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 1 I0(a)(2) SiPs.

Secti:nhlO(a) Revisions to Nevada’s Existing 11O(a)(2) SIP Submittals

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

quality (PSD) program (40 CFR §5221). The NDEP maintains that 40 CFR §52.1485 (b),

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

§110(a)(2)(C) 52.21 except paragraph (a)(1) are incorporated and made a part of the applicable

State plan for the State of Nevada exceptfor 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 2 D As noted in element C above, the NDEP has full delegation of the federal PSD program, and § (a)( )( 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
p

q

§110’ “2”E’ 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 thedisclosure of conflicts of interest requirement of this element. See NDEP’s analysis of how

these provisions satisfy the requirement in Attachment C.

(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.

§11Olaf2Fl 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 suchinformation for public inspection.

• CAA § 121, Consultation: The NDEP Is submitting Attachment 0 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

§110’a”2”J’ 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.

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.

§110(a)(2)(K)

• 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,

2
3
This page is intentionally blank.

4
12.0 Purpose

The purposes ofthis section ofthe Nevada State Implementation Plan (SIP) are to update and

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

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

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

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

portions ofsection 11 0(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 Reu1atory Reguirements

CAA section 1 10(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 governmentsfor

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 0 ofthe Code of Federal Regulations (40

CFR part 51, subpart 0) (“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 ofthe resources available to the State and

local agencies at the date of submission of the plan and of any additional

resources needed to carmy out the plan during the 5-year period following its

submission. The description must include pro/ections 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

A- I
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 ofmoney 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 ofthe State’s motor vehicle inspection and maintenance (JIM) 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 offunding 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 section 105 under which USEPA is authorized to make grants to air pollution control agencies to defray

a portion ofthe costs associated with implementation of programs for the prevention and control of air pollution and achievement ofthe 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.

A-2
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 (80CC) 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

ofimplementation 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 transportationcommission 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 ofthe 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

A-3
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 ofthese 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 ofthe agencies for air pollution control purposes over

that period.

A-4
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

N RS 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) Ef 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 ofthe 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 ofsubsection I 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 ofsubsection I; or

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

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

(Added toNRS by 1977, 1176;

A 2005. 1581; 2011.2992)

NRS 281 A.l 50 “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.

I. “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.

B-I
y 

sory; (c) Any member of a special district whose official duties do not include the formulation of a budget for the district or the authorization ofthe expenditure ofthe district’s money; or (d)

A county health officer appointed pursuant to NRS 43 9.290.

i.4.2)—(Substituted

(Added to NRS by

in

1985,

revision

2121;

for

A 1987, 2093; 1999. 883; 2001. 658,j,.;2003, 116; 2005. 2302; ZQ 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 fuithful 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 ofthat 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 ofNRS 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 ofthe 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 oftelephones or other means of communication if there is not a special charge for that use.

B-2
(II) The cost or value 

(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 ofthe general public for nongovernmental purposes; or

(3) The use oftelephones or other means of communication ifthere 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)—.{SubstitutedinrevisionforNRS 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) Ifthe public officer or employee leaves the service ofthe 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 ofthe client;

(b) The nature ofthe representation; and

(c) The name ofthe 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 tiling, the disclosure is tiled in one ofthe following ways:

(a) Delivered in person to the principal office ofthe 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.

B-3
(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 conceming 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. Ifthe 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 ofthe body. Ifthe 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, ifthe public officer holds an elective office,

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

2. The provisions ofsubsection 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 1fS. 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 ofjudgment 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 ofsubsection 3:

(a) It must be presumed that the independence ofjudgment 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 I 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 ofrepresentative government and deprives the public and the public officer’s constituents of a voice in governmental affairs, the provisions ofthis 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 ofthe requirements ofthis section, the

B-4
make disclosures concerning g

, 

, 

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

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

(1) Who is a member ofthe 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 (I) 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,

fl3, 3389; 2007. 3372; 2009. 1055, jQj)— 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.

I. Except as otherwise provided in this section and in NRS 445B.3 10:

(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 itsjurisdiction 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.2l5 with the exception that

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

NRS, once a week for 3 weeks. The notice must specife 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

B-S
g 

p

st

ict 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 ofthe 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 offossil 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 fi.iels 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.

(AddedtoNRSby 1971, 1199;A 1973, 1819; 1975, 1126, 1782; 1977, 1559; 1979, 546; 1985, 291; 1991, 2161; 1993, 175; 1997. 1999; 1999. 1976; 2001. 1296. 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 ofthe 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 ofthe 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 chanter 277A of NRS.

(Added to NRS by 1999, 1975;

A 2011. 1264)

B-6
JN ‘ O1VS ON OF EO4ENT? ‘ROTECTION

3unei 2012

—Znfer

Aoaie Dxiec

Air DnUi EPA Rti 9

Du Am

Pet xphone hou Jue 15. 2012. ittiched ii the whitepiper bausiou frthe Nva$a

Dison of Environmental Potectwn. WahoeCntv Air Quahly )4anaenwritDiSi**t and Clark

County Deparrnent of Aix Quahty re*rthn conflirt ofmterest rovrcmocc zd inftaadire SIPi. If

you h3ve ny tui’J qreflou plese feeleto comxtt at (775) 67-933O.

I /]

Rob Bmfod

Cle Bure*n of Air Quahly Plamaizg

Nè D*vanon ot EnvE mziabl Ptntec

F.Cc h*ktWi*? CaeL PA

DWtCAQMD

Le.Mmid DAWiso.Dvy

Laws Waye Dru, Clan CyDAQ

CathIrpaon DqzyDA.CakCy

Jnbla Dpam AG. S NE

P —NEPaM

DAnuNOES

OT S e*t !.A4G1 Cai Cay, t’q*ta p T77Ac7Ot 7Th81

c-I
This page is intentionally blank.

C-2
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 (“NAAQ.S”), 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 Districtaddresses how Nevada’s Ethics in Government provisions comply with the intent of Section 128 of the

CAA.

Section 128 of the CAA provides:

State boards’

(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-3
e

bers 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.

C-4
Memo. If one were to strictly construe that language, the fact that a board membcontractor 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 inthe 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 interestsof 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 recusethemselves 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://forestrv.nv.gov!; http:!/www.ndow.onilabout/; http://water.nv.ov!; http://agri.nv.gov/AboutUs.htm: http://mineralsstate.nv.us/aboutus_mission.htm; http://heafth.nv.gov/BOH.htm.

C5
p

t

on 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:

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. “During the recent discussions, EPA Region 9 has indicated that EPA no longer includes the term “individual” as part ofthe “board or body” definition.

C-6
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 128would 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 somesimilar mechanism.” Presumably, persons who are conservationists would represent the public interestwithin 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, itappears 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, requirethat 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-7
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 thesetypes 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 reasonsdiscussed 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 DistrictThe 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.

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-8
member to be chosen by the members so appointed.

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

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 ordesignee 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-9
c-b
11.0 Purpose

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

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

Environmental Protection Agency (USEPA) in 1972 [37 Fed. Reg. 10,842 (May 31, 1972)1 and

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

11 0(a)(2)(J) and section ii 0(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 Reiulatory Reguirements

CAA section 11 0(a)(2)(J) requires SIPs to meet the applicable requirements ofsection 121

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

In carrying out the requirements ofthis Act requiring applicable implementation

plans to contain—

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

orpreconstruction review ofdirect sources ofairpollution, or

(2) any measure referred to—

(A) in part

D (pertaining to nonattainment requirements), or

(B) in part

C (‘pertaining to prevention ofsignificant deterioration),

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

enfOrcement orders), 6 the 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 rferred

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- I
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 identj5i 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 ofunderstanding among the organizations.

40 CFR 5 1.241(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 A QCR or portion of an A QCR 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 certi,5’, after consultation with local offIcials, the organization responsible for developing the revised implementation plan or portions thereoffor 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 ofthe State ofNevada for the purposes ofthe 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 ofthe DCNR has selected the NDEP Administrator as the official designee for the

purposes ofthe CAA, including, but not limited to, adoption, revision and submittal ofstate 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.

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

D-2
subsections (5) and (6). Lastly, the DCNR, through the SEC and the NDEP, retains the 

y

to administer air programs in Clark and Washoe Counties ifsuch 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 ofthe 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 ofthe air in any area. See NRS section 445B.235. 1°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 ofNDEP 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 1X, 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, theNDEP 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.

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

Approved by USEPA at 71 Fed. Reg. 51,766 (August31, 2006). ° Approved by USEPA at 71 Fed. Reg. 51,766 (August31, 2006).

D-3
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 ofimplementation 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 ofthem 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 ofBoulder 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 oftwo members from the BOCC, two members from the city council ofthe 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 ofthe 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-4
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-.l0), and

a “nonattainment” area for the

1997 national ambient air quality standard for ozone. ‘

The MPO in Clark County is the Southern Nevada RTC. The Southern Nevada RTC hasestablished 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 WorkingGroup, 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 (‘onfbrmity Plan (January 2008), which provides specific

criteria and procedures for interagency consultation for conformity purposes, as part ofthe

Nevada SIP. See 73 Fed. Reg. 66,182 (November 7, 2008).

11.4 Lake Tahoe Basin

Lake Tahoe lies in a basin between crests ofthe 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

H See 75 Fed. Reg. 59,090 (September 27, 20l0)(USEPA approval ofredesignation 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-5
p

essures, 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/abouttrpaJBistateCompact.pdf), gave TRPA authority to adopt environmental quality standards, called thresholds, and to enforce ordinances designed to achieve the thresholds. Seven ofTRPA’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 ofsupervisors of Carson City, and by the Governor, and includes the secretary of State of Nevada (or designee), and the director ofthe DCNR (or designee), and

one appointee by the six other members ofthe 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 ofthe 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 statusofthe 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 ofthe Lake Tahoe Basin from nonattainment to attainment for the carbon monoxide standard). Although the Nevada side ofthe 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 ofthe 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 ofthe TRPA and there is one representative of the U.S. Forest Service, in recognition ofthe 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 TIVFPO 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-6
Conformity Task Force in the Lake Tahoe Basin consists ofrepresentatives 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 CountyHealth District’s Air Quality Management Division (AQMD).

Under state law, a district board of health must consist oftwo members from each county, city or

town that participated in establishing the district, to be appointed by the governing body ofthe

county, city or town in which they reside, together with one additional member to be chosen by

the six members so appointed. See NRS 43 9.390, included herein as Exhibit 11-4. The additionalmember 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 andenforce 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 andcounty 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-7
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 nonattaimnent 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 ofthe Truckee Meadows portion ofthe 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-b). 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 ofredesignationrequest 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-8
EXHIBITS TO SECTION 11, INTERGOVERNMENTAL

CONSULTATION, OF THE NEVADA STATE

IMPLEMENTATION PLAN

June 2012

D-9
This page is intentionally blank.

D- 10
lice 1Jn tLnvtu

timui If. RrvbI Hiimrimm

9)I S. fLcwan 5tctl. Sub. 5001

Laztun CIV. ‘4eiAdfi K’flal

TLIPIt?(tLe T75 184 2’00

WCMCT1ILm (?7!1 I’427i$

hIUW

L)jvWot OF qt Lajsih

Civioirm olfitmite Paricm

Ijivu,,juii (A IQfl9( ‘3LIL’(’V

Nnmurnl iitiitzig v’njm

V.114 [ThI n JLL

Nevada Revised Statutem 445B.295 desigmlte3 the DCpRTIrnenI ciCnnservacion and !‘lamral

ksourecs(I)epanmenc) a the air pollution control agency ±ór the t&1tc of Nevada fbr the

• piflpoaes of the Cicaji Mi Act inso1r as ii pertains to State progims. Within tht Department,

the Division of bnvirnnmemtal Protccfiorz baa responsibility ui manage the air qnahiy planning

and air polbidon 000tr{)l programs for the Slate oiNtntada. Therelótc, pursuiiut to NewuLa

Administrative Code 44513,053.1 .ini hereby assisting the Administrator of the Nevada Division

ofBrwironrnental Protection, or the Deputy Administrator acting on his hehali, to he my official

deneo kw the or the Clean Air Act, including, hal nat limited cc. adoption, revision

and submittal ofstate placis and state implenLenlaton plans.

Sincerely, -

Allen Biaggi

Iiitoctor

cc Michael Dayton, Chief of Staff, Office ofthe Governor

Jodi Stephens. Deputy Chief of Staff, Ollice of the Coveineri

Leo 1)ronioff, Adimnatralor, NTWP

Colleen Cripps fleputy Administrator, NDEP

T’vm Pcrtu, Deputy Adminiatralar, NUt!’

Dehnib Jordan, Diratni-. fiPA Air Divisloti, kegitot IX

Jcffcmon Wehling. ORE, PP.4 Re8ion IX

a

STATE OF NEVADA

Department of Cunscrvatiou and Natural Resources

QflJCE OF The flRE&YOR

May 30, 2007

Wayne Nastri

Regional Adininistntor

ORA—l, USIWA Region 9

75 Hawthorne Stroct

San FnLTWiNCOCA 94105

I)csr Mr. Nastr[

.

iC•’i

D-l I
Oc w ni .GOVRRNOX

I3EG4I

!b DWa 1RutL?a

cM

-

.—.. .•,. ,

L.gV.WV B9W4601

3 .4Oin eUd TwiNkfii.iw.y cpøa afOk,Ir1p?.a Øáim )d

iwmC*e$,rd teimg

jqppai.WiU.k*LLn Ak A4 y’miu i4Ø?IqobI ad Aa wikcca,,

hLrkW6 -

— d bk-md

M1r.4flaIXNR

101 ‘ThM.j

D- 12
CHAPTER 4453 -AIR POLLUTION

PROGR1M FOR CONTROL 0! IRPOLLUTiON

NRS 445B.$03 Local air pollution control board in comuv whose population is 7tO,(HX)

or more: Cooperation with regional planning coalition and regional transportation

commission prerequisites to adoption or amendment of plan. policy or program.

1 In aathtiou to the duties set forth in PS 445R .M’ the local air pollution continl board m

a counW whose population is 700,000 or more shall cooperate with the regional phrnriincoalition and the regional transportation couuinssion 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 prooram of inteerated.. 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, pohc or program, a local air pollution control board

shall:

(a) Consult with the regional plannmg coalition and the regional transportitlon commission.

and

(b) Conduct hearings to i.olicit public coniment on the ccnnatency of the plan, policy or

program with:

(1) The plans, policies and proims adcpted or prop ed to be adopted by the regional

planning coahtion and the regional nan’portatlon cc’mmision and

2) Plans for capital improvements that have been prepared pursuant to NRS 278.O22.

3, Asuedinthissection

(a) Local air poUunon contiol board means a board that earabh.hes a program for the

control of air pollution pursuant to NRS 4453.500.

b)Eegiona1 planning coalition’ has the meaning ascribed to it in NRS 8.012.

c) esioria1 transportation conmussion’ ru.eans a regional transportation commission

created and orcanized in accordance with chanter 277A of NRS.

dddtasb 199. 175,A 2511 124

D- 13
CHAFfER439.- ADMINISTRATION OF PUBLIC HEALTH

LOCAL ADflNSThAT1ON

Ditt,i1 Board ofEtaith sad Dstrkj Eealth Q bcoaps 1Tho EjsLess Thsa 7OOOOQ

NRS 4.tL3PO Dnrict boerd of health. Compo i1thctie emien.

I A thUit board of health ntrcnsot of twv nembers um esh cowy, city or town wbth pextirxpoted in eithin the &i*ict, o be mted by the go’tenfng body of the coimy, city ot town ia whch they res1e, thewidi one adcnu1 tosmb to be chosax by de membei so epomsei 1 The adiboualmbermust be a physkian hcensed to pssclke in this Stat,.

.Ifthe aiAtxe menibem of the drsliict boBd ofiealth fail to choe1he sdihtiom1 mberlhin 30 clays tecganitioa of the ilisnict health d itne& the iriooai cisybe appointed by the Stare KeaIth

1S199tI91l. eddad I3P, 27, I3l NC!. d&)l—(NR5 A 19S9, 11>4 tLg4l. !1 I3?)

- t4,

D-L4