The State Environmental Commission (SEC) may need to adopt new regulations to require replacement, capture, and recycling, or other measures to reduce the use of ODS substitutes such as HFCs and PFCs. Colorado recently proposed a regulation to accomplish a similar purpose. Note that Oregon and California adopted new legislation, rather than a regulation, to prohibit or phase out HFCs or products that contain them.
Through NRS 445B.210(5), the SEC has authority to “establish such requirements for the control of emissions as may be necessary to prevent, abate, or control air pollution.” The Commission may also “require elimination of devices or practices which cannot be reasonably allowed without generation of undue amounts of air contaminants” (NRS 445B.210(9)). In addition, the Commission “may cooperate with other governmental agencies, including other states and the federal government” regarding air pollution (NRS 445B.210(4)).
ODS substitutes such as HFCs and PFCs are likely “air contaminants” when discharged into the atmosphere, as defined in NRS 445B.110. As such, the SEC can likely establish that ODS substitutes in the outdoor air constitute “air pollution,” as defined in NRS 445B.115. They are present in the outdoor air in quantities and durations that, due to their high GWP, “may tend to . . . injure human health or welfare, animal or plant life or property; . . . interfere with scenic, esthetic and historic values of the State; and interfere with the enjoyment of life or property” (NRS 445B.115).
A brief preliminary federal preemption analysis indicates that federal law may not preempt Nevada laws that reduce the use of ODS substitutes, as long as Nevada’s requirements are more stringent than federal requirements. However, more research is necessary to confirm this.
Section 116 of the Clean Air Act, 42 U.S.C. § 7416 (“Retention of State Authority”) states, with exceptions not relevant here, that nothing in the Clean Air Act “shall preclude or deny the right of any State . . . to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution.” Under Section 116, states may adopt emissions standards and limitations that are more stringent than standards or limitations in federally approved State Implementation Plans (SIPs). They may not, however, adopt standards or limitations that are less stringent (42 U.S.C. § 7416).
Section 116 applies to the Clean Air Act’s requirements for protecting the stratospheric ozone layer (42 U.S.C. § 7671q). This seems to imply that states may adopt more-stringent requirements for ODS substitutes than under the federal Clean Air Act.
Title VI of the federal Clean Air Act covers protection of stratospheric ozone. 42 U.S.C. §§ 7671-7671q; see also 42 C.F.R. Subpart G. In particular, Section 612 (“Safe Alternatives Policy”) governs safer alternatives for ODS. https://www.govinfo.gov/content/pkg/USCODE-2013-title42/html/USCODE-2013-title42-chap85-subchapVI-sec7671k.htm
A thorough analyses of the potential for federal preemption of state laws regarding ODS substitutes should be completed.