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Moapa 60-Day Notice Letter & Appendices

Moapa 60-Day Notice Letter & Appendices

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Moapa 60-Day Notice Letter & Appendices
Moapa 60-Day Notice Letter & Appendices

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Published by: cappellaj on Mar 20, 2013
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March 19, 2013
Sent via U.S. Certified Mail 
Lisa P. Jackson Jared Blumenfeld
Administrator, U.S. EPA Region IX Administrator, U.S. EPAAriel Rios Building 75 Hawthorne Street1200 Pennsylvania Avenue Northwest Mail Code: ORA-1Mail Code: 1101A San Francisco, CA 94105Washington, DC 20460
Brian Sandoval Colleen Cripps
Governor of Nevada Administrator, Nevada DEPState Capitol Building 901 South Stewart Street, Suite 4001101 North Carson Street Carson City, NV 89701Carson City, NV 89701
Gregg P. Barnard Mark W. Cowin
Registered Agent for NV Energy Director, California DWR 6100 Neil Road, Suite 500 1416 9th Street, Room 1115-1Reno, NV 89511 Sacramento, CA 95814
Re: 60-Day Notice of Clean Air Act Violations
To those addressed above:On behalf of the
Moapa Band of Paiute Indians (“Tribe”)
, we hereby provide notice of 
violations of the federal Clean Air Act (“CAA”), 42 U.S.C. §§ 7401
-7671q, occurring at the Reid
Gardner Generating Station (“RGGS”)
, which is owned and operated by NV Energy and the
California Department of Water Resources (collectively “
. If the Tribe and Permitteeare unable to adequately resolve Permittee
CAA violations within 60 days of the postmark datefor this letter, the Tribe intends to commence a civil action against Permittee pursuant to 42U.S.C. § 7604.
The Moapa Band of Paiute Indians is a federally-recognized Indian tribe. The Tribeoccupies the Moapa Indian Reservation (
“Reservation”), which is located in the heart of the
traditional Southern Paiute territory that originally extended from the San Juan River in easternUtah to the Chemehuevi areas west of the Colorado River in southern California. Today, the
Moapa Tribe’s 60
-Day Notice of Air Permit Violations at RGGSMarch 19, 2013Page
Reservation encompasses approximately 73,061 acres of land in Clark County, Nevada, and isapproximately 45 miles northeast of Las Vegas.
Air quality on the Moapa Reservation is significantly impacted by air pollutants emitted byRGGS,
a 4 unit, 550 net MW coal-fired power plant
located approximately 1 mile from the main population center on the Reservation. RGGS is owned and operated by Permittee and is primarily
regulated by the Nevada Division of Environmental Protection (“NDEP”). T
he main air pollutioncontrol requirements applicable to
RGGS are described in the “Class I Air Quality Operating Permit”
that NDEP issued to Permittee
in April 2004 (“RGGS Permit”).
As described below in more detail, the Tribe has obtained information indicating thatPermittee routinely violates the terms of the RGGS Permit. Specifically, Permittee appears to ignorethe heat input limits established in the RGGS Permit, and also violates permit requirements regardingambient air monitoring activities. These permit violations demonstrate Permittee
’s failure to exercise
adequate oversight and management of RGGS operations and indicate an unacceptable disregard for the well-being of the Tribal community that has existed on the land where RGGS now sits for 
at leastthe past 800 to 1,000 years.
The CAA authorizes members of the public to enforce air permit requirements. Specifically,
the CAA citizen suit provision authorizes “any person” to commence a lawsuit against “any person . .
. who is alleged to have violated (if there is evidence that the violation has been repeated) or to be in
violation of . . . an emission standard or limitation under this chapter . . . .” 42 U.S.C. § 7604(a
The definition of “person” in this section of the CAA is broad and encompasses Indian tribes.
See id 
§ 7602(e). The term “emission standard or limitation” is also broadly defined—it includes “any . . .
standard, limitation or schedule established
under any [Title V operating] permit” and “any permitterm or condition” that “is in effect under this chapter . . . or under an applicable implementation plan.”
§ 7604(f)(4). Prior to initiating such a lawsuit, the Tribe is required to provide 60-d
notice of the violations in accordance with 42 U.S.C. § 7604(b) and 40 C.F.R. Part 54.
The Tribe hereby provides notice, pursuant to
42 U.S.C. § 7604(b) and 40 C.F.R. Part 54,
 that Permittee has violated the federally-enforceable provisions of the RGGS Permit in at leastthe following respects:
Falsified Ambient Air Monitoring Data
The RGGS Permit requires Permittee to collect ambient air monitoring data for 
 particulate matter (“PM”) and gas
eous pollutants. RGGS Permit, § V.H. Permittee is required tosubmit quarterly monitoring reports with the results of such monitoring to the Nevada Bureau of Air Quality Planning.
In submitting such reports, Permittee is required to conduct a
“reasonable inquiry” and, on the basis of such inquiry, certify that the contents of its reports are“true, accurate, and complete.”
§ I.S.Permittee operates RGGS in violation of these monitoring, investigation, and reportingrequirements. Documents the Tribe obtained from NDEP through a public records request
Moapa Tribe’s 60
-Day Notice of Air Permit Violations at RGGSMarch 19, 2013Page
indicate that Permittee violated section V.H of the RGGS Permit by intentionally falsifyingambient PM data, beginning at least as early as 2006 and extending through the first quarter of 2011. As a result of this practice, the ambient PM data Permittee recorded, certified, andsubmitted to the Nevada Bureau of Air Quality Planning during the period in question is entirelyunreliable and unusable.
The flaws in Permittee’s ambient PM data are obv
ious. A forensic investigation report of 
Permittee’s PM data from the first quarter of 2008 to the first quarter 
of 2011 (attached asAppendix A) determined that Permittee failed to record ambient PM data during this period butinstead
copied or otherwise duplicated
” the PM data from previous periods to satisfy its
reporting requirement. This conclusion is consistent with a 2012 memorandum NDEP draftedwhen Permittee applied for a renewal of its RGGS Permit (attached as Appendix B), whichconcludes that
“much of the
[ambient PM] data was found to be identical throughout the 5-year 
time period”
 between 2006 and 2010,
and that analysis of this data “suggests that earlier data
was simply copied or otherwise duplicated into each subsequent spreadsheet as it w
as created.”
 As stated above, Permittee
’s failure to collect ambient PM data from 2006 through at
least the first quarter of 2011 violates
section V.H of the RGGS Permit. In addition, Permittee’s
submittal of this obviously flawed data to Nevada Bureau of Air Quality Planning violates thecertification requirements in section I.S. of the RGGS Permit. Had Permittee conducted a
“reasonable inquiry” into the accuracy of its flawed PM data, it could have avoided the
invalidation of years of data on which the Tribe (and the public) could rely to make importantdecisions regarding the health and safety of its members.
Heat Input Violations
The RGGS Permit also establishes maximum limits for hourly heat input for each of thefour boiler units at RGGS. RGGS Permit, §§ VI.A.3.c, VI.B.3.c, VI.C.3.c, VI.D.3.c, VI.C.E.c,VI.F.3.c, VI.G.3.c, VI.H.3.c. Pursuant to these permit provisions, the maximum hourly heatinputs for Unit 1 is 1,215 MMBtu/hr; Unit 2 is 1,215 MMBtu/hr; Unit 3 is 1,237 MMBtu/hr; andUnit 4 is 2,956 MMBtu/hr.The publicly available heat input data Permittee has submitted to EPA demonstrates (to
the extent Permittee’s submittals are reliable and ac
curate) that Permittee routinely operatesRGGS in violation of these heat input limits. The following table, which compiles data includedin Appendix C to this letter, shows the number of hours per year between 2008 and 2011 thatPermittee operated each of the four RGGS boiler units in violation of the heat input permit limitsin the RGGS Permit:
ultimately decided to issue a “warning” to Permittee for the ambient PM data violations, which it concludedwere the result of “human error” by third
-party contractors. The Tribe vehemently disagrees with this conclusion.The forensic analysis carried o
ut by Permittee’s own consultant and attached as Appendix A demonstrates that theflaws in the PM data were not the result of “error” but rather deliberate misconduct. In addition, although the PM
data may have been collected for Permittee by a third-party contractor, section I.S of the RGGS Permit makes itclear that Permittee is responsible for reviewing such data and ensuring its accuracy prior to submittal.

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