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 ATTORNEYS AT LAW STEVEN H. CHESTNUT JAMES L. VARNELL RICHARD M. BERLEY MARC D. SLONIM BRIAN W. CHESTNUT BRIAN C. GRUBER JOSHUA OSBORNE-KLEIN JOHN B. ARUM 1961 - 2010 FOURTH AND BLANCHARD BUILDING 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121-2331 TELEPHONE: (206) 448-1230 FAX: (206) 448-0962

March 19, 2013

Sent via U.S. Certified Mail

Lisa P. Jackson Jared Blumenfeld

Administrator, U.S. EPA Region IX Administrator, U.S. EPA Ariel Rios Building 75 Hawthorne Street 1200 Pennsylvania Avenue Northwest Mail Code: ORA-1 Mail Code: 1101A San Francisco, CA 94105 Washington, DC 20460

Brian Sandoval Colleen Cripps

Governor of Nevada Administrator, Nevada DEP State Capitol Building 901 South Stewart Street, Suite 4001 101 North Carson Street Carson City, NV 89701 Carson 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 1115-1 Reno, 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 “

Permittee

”)

. If the Tribe and Permittee are unable to adequately resolve Permittee

’s

CAA violations within 60 days of the postmark date for this letter, the Tribe intends to commence a civil action against Permittee pursuant to 42 U.S.C. § 7604.

I.

 

BACKGROUND

The Moapa Band of Paiute Indians is a federally-recognized Indian tribe. The Tribe occupies 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 eastern Utah 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 RGGS March 19, 2013 Page

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 of

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Reservation encompasses approximately 73,061 acres of land in Clark County, Nevada, and is approximately 45 miles northeast of Las Vegas.

Air quality on the Moapa Reservation is significantly impacted by air pollutants emitted by RGGS,

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 pollution control 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 that Permittee routinely violates the terms of the RGGS Permit. Specifically, Permittee appears to ignore the heat input limits established in the RGGS Permit, and also violates permit requirements regarding ambient 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 least the past 800 to 1,000 years.

II.

 

STATUTORY FRAMEWORK

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

)(1).

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 permit term or condition” that “is in effect under this chapter . . . or under an applicable implementation  plan.”

 Id.

§ 7604(f)(4). Prior to initiating such a lawsuit, the Tribe is required to provide 60-d

ays’

notice of the violations in accordance with 42 U.S.C. § 7604(b) and 40 C.F.R. Part 54.

III.

 

CAA PERMIT VIOLATIONS

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 least the following respects:

a.

 

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 to submit quarterly monitoring reports with the results of such monitoring to the Nevada Bureau of Air Quality Planning.

 Id.

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.”

 Id.

§ I.S. Permittee operates RGGS in violation of these monitoring, investigation, and reporting requirements. Documents the Tribe obtained from NDEP through a public records request

 

Moapa Tribe’s 60

-Day Notice of Air Permit Violations at RGGS March 19, 2013 Page

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 of

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indicate that Permittee violated section V.H of the RGGS Permit by intentionally falsifying ambient 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, and submitted to the Nevada Bureau of Air Quality Planning during the period in question is entirely unreliable 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 as Appendix A) determined that Permittee failed to record ambient PM data during this period but instead

“

copied or otherwise duplicated

” the PM data from previous periods to satisfy its

reporting requirement. This conclusion is consistent with a 2012 memorandum NDEP drafted when Permittee applied for a renewal of its RGGS Permit (attached as Appendix B), which concludes 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.”

1

 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 the certification 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 important decisions regarding the health and safety of its members.

b.

 

Heat Input Violations

The RGGS Permit also establishes maximum limits for hourly heat input for each of the four 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 heat inputs for Unit 1 is 1,215 MMBtu/hr; Unit 2 is 1,215 MMBtu/hr; Unit 3 is 1,237 MMBtu/hr; and Unit 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 operates RGGS in violation of these heat input limits. The following table, which compiles data included in Appendix C to this letter, shows the number of hours per year between 2008 and 2011 that Permittee operated each of the four RGGS boiler units in violation of the heat input permit limits in the RGGS Permit:

1

 NDEP

ultimately decided to issue a “warning” to Permittee for the ambient PM data violations, which it concluded were 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 the flaws 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 it clear that Permittee is responsible for reviewing such data and ensuring its accuracy prior to submittal.