[Rev. 5/20/2016 4:53:22 PM--2015]

CHAPTER 445C - ENVIRONMENTAL REQUIREMENTS; CLEANUP OF DISCHARGED PETROLEUM

ENVIRONMENTAL REQUIREMENTS

NRS 445C.010        Definitions.

NRS 445C.020        “Environmental audit” defined.

NRS 445C.030        “Environmental requirement” defined.

NRS 445C.040        “Regulated facility” defined.

NRS 445C.050        “Regulated person” defined.

NRS 445C.060        “Regulatory agency” defined.

NRS 445C.070        Mitigating factors considered by court in determining criminal penalty for violation; written agreement regarding environmental audit may be modified; authority of regulatory agency not limited by mitigation of criminal penalty.

NRS 445C.080        Presumption that regulated person is not liable for administrative or civil penalty for violation; written agreement concerning environmental audit may be modified; authority of regulatory agency not limited by presumption against liability.

NRS 445C.090        Rebuttal of presumption that regulated person is not liable for administrative or civil penalty for violation.

NRS 445C.100        Administrative or civil proceedings for violation: Burdens of proof.

NRS 445C.110        Environmental audit: Privileged; exceptions.

NRS 445C.120        Regulations; court or administrative hearing officer not to consider failure to conduct environmental audit in determining liability for violation.

CLEANUP OF DISCHARGED PETROLEUM

NRS 445C.150        Definitions.

NRS 445C.160        “Board” defined.

NRS 445C.170        “Department” defined.

NRS 445C.180        “Diesel fuel of grade number 1” defined.

NRS 445C.190        “Diesel fuel of grade number 2” defined.

NRS 445C.200        “Discharge” defined.

NRS 445C.210        “Division” defined.

NRS 445C.220        “Fund” defined.

NRS 445C.230        “Heating oil” defined.

NRS 445C.240        “Motor vehicle fuel” defined.

NRS 445C.250        “Operator” defined.

NRS 445C.260        “Person” defined.

NRS 445C.270        “Petroleum” defined.

NRS 445C.280        “Storage tank” defined.

NRS 445C.290        Legislative findings.

NRS 445C.300        Board to Review Claims: Creation; members; Chair; administrative assistance; compensation of members.

NRS 445C.310        Fund for Cleaning Up Discharges of Petroleum: Creation; administration by Division; adoption of regulations by Board; claims; expenses and interest; resolutions adopted by Board concerning Fund.

NRS 445C.320        Fund for Cleaning Up Discharges of Petroleum: Expenditures for certain discharges; limitations; reimbursement.

NRS 445C.330        Collection of fee for certain fuels and heating oil; exempt products; payment of expenses of Department.

NRS 445C.340        Registration of storage tanks: Collection of annual fee; exempt tanks; reimbursement and other liability for noncompliance.

NRS 445C.350        Transfer of portion of ending balance in Fund to account created in NRS 408.242.

NRS 445C.360        Report of discharge from tank required; cleanup of discharge; test of tank required for certain coverage for cleanup.

NRS 445C.370        Allocation of costs resulting from discharge from certain storage tanks for heating oil.

NRS 445C.380        Allocation of costs resulting from discharge from other storage tanks; requirement to hold public hearings under certain circumstances.

NRS 445C.390        Liability for costs to clean up discharge caused by willful or wanton misconduct, gross negligence or violation of statute or regulation.

NRS 445C.400        Pro rata reduction if balance of Fund insufficient for full payment.

NRS 445C.410        Tanks exempted from certain provisions; optional coverage of exempted tank.

_________

ENVIRONMENTAL REQUIREMENTS

      NRS 445C.010  Definitions.  As used in NRS 445C.010 to 445C.120, inclusive, unless the context otherwise requires, the words and terms defined in NRS 445C.020 to 445C.060, inclusive, have the meanings ascribed to them in those sections.

      (Added to NRS by 1997, 1074; A 2015, 3607)

      NRS 445C.020  “Environmental audit” defined.  “Environmental audit” means an examination of the materials or practices at a regulated facility that is conducted by a regulated person or an agent of a regulated person and that is specifically designed to:

      1.  Produce systematic, documented and objective results;

      2.  Identify and prevent noncompliance with any environmental requirement; and

      3.  Improve compliance with such a requirement.

      (Added to NRS by 1997, 1074)

      NRS 445C.030  “Environmental requirement” defined.  “Environmental requirement” means a requirement contained in NRS 444.440 to 444.645, inclusive, 445A.300 to 445A.730, inclusive, 445B.100 to 445B.640, inclusive, 459.400 to 459.600, inclusive, 459.700 to 459.856, inclusive, or 519A.010 to 519A.280, inclusive, or in a regulation adopted pursuant to any of those sections.

      (Added to NRS by 1997, 1074; A 2007, 1910; 2009, 1085)

      NRS 445C.040  “Regulated facility” defined.  “Regulated facility” means an area, building, tank or other facility that is subject to an environmental requirement.

      (Added to NRS by 1997, 1074)

      NRS 445C.050  “Regulated person” defined.  “Regulated person” means the owner or operator of a regulated facility.

      (Added to NRS by 1997, 1075)

      NRS 445C.060  “Regulatory agency” defined.  “Regulatory agency” means:

      1.  The State Environmental Commission;

      2.  The State Department of Conservation and Natural Resources or the Division of Environmental Protection of that Department;

      3.  A district board of health acting as a solid waste management authority pursuant to NRS 444.440 to 444.620, inclusive; or

      4.  A district board of health, county board of health or board of county commissioners administering a program for the control of air pollution pursuant to paragraph (a) of subsection 1 of NRS 445B.500.

      (Added to NRS by 1997, 1075; A 2009, 1086)

      NRS 445C.070  Mitigating factors considered by court in determining criminal penalty for violation; written agreement regarding environmental audit may be modified; authority of regulatory agency not limited by mitigation of criminal penalty.

      1.  Except as otherwise provided in subsection 3, a court that is determining the appropriate criminal penalty to impose against a regulated person who is convicted for a violation of an environmental requirement shall consider, in mitigation of the penalty, whether:

      (a) An environmental audit was conducted pursuant to a written agreement with the appropriate regulatory agency and the agreement prescribed the:

             (1) Scope, methods and schedule for conducting the audit;

             (2) Manner in which a violation of an environmental requirement must be reported to the regulatory agency, including, but not limited to, the number of days after the discovery of a violation that the regulated person must report the violation to the regulatory agency; and

             (3) Period within which such a violation must be corrected;

      (b) The regulated person voluntarily disclosed the results of the environmental audit to the appropriate regulatory agency in accordance with the requirements of the written agreement;

      (c) The regulatory agency discovered the violation of the environmental requirement as a result of the voluntary disclosure in the environmental audit and before:

             (1) The occurrence of any inspection or investigation of the regulated facility by a regulatory agency or other governmental entity; or

             (2) The commencement of an administrative proceeding or a civil or criminal action against the regulated person for the violation;

      (d) The regulated person or regulated facility has not been issued a citation for a violation of the environmental requirement in the immediately preceding 3 years;

      (e) The regulated person did not obtain an actual economic benefit or advantage as a result of the violation; and

      (f) The regulated person entered into an enforceable agreement with the appropriate regulatory agency to:

             (1) Comply, as soon as practicable after the violation, with the environmental requirement;

             (2) Remedy any damage or other harm caused by the violation; and

             (3) Take action to prevent a recurrence of the violation.

      2.  A written agreement that prescribes the scope, methods and schedule for conducting an environmental audit may be reasonably modified if the regulated person and the regulatory agency specifically agree to the modification.

      3.  If a federal statute or regulation provides for the imposition of a specific penalty for a violation of an environmental requirement, a voluntary disclosure that complies with the provisions of subsection 1 is, to the extent permitted under that statute or regulation, a mitigating factor to be considered by the court when determining the penalty for the violation.

      4.  The mitigation of a criminal penalty pursuant to subsection 1 does not limit the authority of a regulatory agency to order a regulated person to comply with an environmental requirement whose violation it discovered because the regulated person voluntarily disclosed the results of an environmental audit.

      (Added to NRS by 1997, 1075)

      NRS 445C.080  Presumption that regulated person is not liable for administrative or civil penalty for violation; written agreement concerning environmental audit may be modified; authority of regulatory agency not limited by presumption against liability.

      1.  Except as otherwise provided in NRS 445C.090, a regulated person is presumed not to be liable for an administrative or civil penalty for a violation of an environmental requirement if:

      (a) The regulated person conducted an environmental audit pursuant to a written agreement with the appropriate regulatory agency and the agreement prescribed the:

             (1) Scope, methods and schedule for conducting the audit; and

             (2) Manner in which a violation of an environmental requirement must be reported to the regulatory agency, including, but not limited to, the number of days after the discovery of a violation that the regulated person must report the violation to the regulatory agency;

      (b) The regulated person voluntarily disclosed the results of the environmental audit to the appropriate regulatory agency in accordance with the requirements of the written agreement;

      (c) The regulated person or regulated facility has not been issued a citation for a violation of the environmental requirement in the immediately preceding 3 years;

      (d) The regulated person entered into an enforceable agreement with the appropriate regulatory agency to:

             (1) Comply, as soon as practicable after the violation, with the environmental requirement;

             (2) Remedy any damage or other harm caused by the violation; and

             (3) Take action to prevent a recurrence of the violation; and

      (e) The environmental requirement that was violated is not a requirement for which the regulated person or regulatory facility was specifically required to comply pursuant to a judicial or administrative order or consent agreement.

      2.  A written agreement that prescribes the scope, methods and schedule for conducting an environmental audit may be reasonably modified if the regulated person and the regulatory agency specifically agree to the modification.

      3.  If a federal statute or regulation provides for the imposition of a penalty for a violation of an environmental requirement, the voluntary disclosure is, to the extent permitted under the statute or regulation, a mitigating factor in determining the amount of the penalty for the violation.

      4.  The presumption against administrative or civil liability does not limit the authority of a regulatory agency to order a regulated person to comply with an environmental requirement whose violation it discovered because the regulated person voluntarily disclosed the results of an environmental audit.

      (Added to NRS by 1997, 1076)

      NRS 445C.090  Rebuttal of presumption that regulated person is not liable for administrative or civil penalty for violation.  The presumption against administrative or civil liability set forth in NRS 445C.080 is rebutted to the extent it is established that:

      1.  The violation of an environmental requirement was committed willfully or with gross negligence by the regulated person;

      2.  The regulated person identified and disclosed the violation of an environmental requirement in an environmental audit after the commencement of:

      (a) An independent inspection or investigation of the regulated facility by a regulatory agency or other governmental entity;

      (b) An administrative proceeding against the regulated person for the violation; or

      (c) A civil or criminal action against the regulated person for the violation;

      3.  The violation resulted in serious actual harm or presented an imminent or substantial danger to the public health or the environment;

      4.  The environmental audit was conducted for a fraudulent purpose;

      5.  The regulated person obtained a significant economic benefit or advantage as a result of the violation; or

      6.  The regulated person conducted a previous environmental audit that disclosed the violation and he or she intentionally failed to report that violation to the appropriate regulatory agency.

      (Added to NRS by 1997, 1077)

      NRS 445C.100  Administrative or civil proceedings for violation: Burdens of proof.  In an administrative or civil proceeding for a violation of an environmental requirement:

      1.  A regulated person who claims to have made a voluntary examination and disclosure pursuant to an audit agreement has the burden of establishing prima facie that the disclosure met the requirements of subsection 1 of NRS 445C.080.

      2.  A regulatory agency has the burden of rebutting the presumption against liability by a preponderance of the evidence.

      (Added to NRS by 1997, 1077)

      NRS 445C.110  Environmental audit: Privileged; exceptions.

      1.  Except as otherwise provided in this section, an environmental audit conducted pursuant to the provisions of NRS 445C.010 to 445C.120, inclusive, shall be deemed privileged and is not admissible in an administrative proceeding or civil action against the regulated person who conducted the audit or the regulated facility which is owned or operated by the regulated person.

      2.  The privilege provided by subsection 1 does not apply if:

      (a) A regulatory agency requests the admission of the results of an environmental audit at an administrative proceeding or civil action commenced by the regulatory agency;

      (b) The regulated person expressly waives the privilege; or

      (c) A court or administrative hearing officer determines in camera that the presumption against administrative or civil liability is rebutted pursuant to NRS 445C.090.

      3.  For the purposes of paragraph (b) of subsection 2, a regulated person does not waive the privilege if he or she voluntarily discloses, pursuant to NRS 445C.010 to 445C.120, inclusive, the results of an environmental audit or a violation of an environmental requirement discovered as a result of an environmental audit to a regulatory agency.

      4.  This section does not prohibit a person or entity from:

      (a) Obtaining information concerning a violation of an environmental requirement from a source independent of an environmental audit.

      (b) Commencing an administrative proceeding or civil or criminal action against a regulated person or a regulated facility which is owned or operated by a regulated person based upon information that was obtained from a source independent of an environmental audit.

      (c) Intervening in a proceeding or action filed against a regulated person or regulated facility if the intervention is specifically authorized by statute or regulation.

      (Added to NRS by 1997, 1077; A 2015, 3607)

      NRS 445C.120  Regulations; court or administrative hearing officer not to consider failure to conduct environmental audit in determining liability for violation.

      1.  A regulatory agency may adopt regulations to carry out the provisions of NRS 445C.010 to 445C.120, inclusive.

      2.  The fact that a regulated person does not conduct an environmental audit pursuant to the provisions of NRS 445C.010 to 445C.120, inclusive, must not be considered by a court or administrative hearing officer in determining whether to impose administrative, civil or criminal liability for a violation of an environmental requirement by the regulated person.

      (Added to NRS by 1997, 1078)

CLEANUP OF DISCHARGED PETROLEUM

      NRS 445C.150  Definitions.  As used in NRS 445C.150 to 445C.410, inclusive, unless the context otherwise requires, the words and terms defined in NRS 445C.160 to 445C.280, inclusive, have the meanings ascribed to them in those sections.

      (Added to NRS by 2015, 3601)

      NRS 445C.160  “Board” defined.  “Board” means the Board to Review Claims.

      (Added to NRS by 2015, 3601)

      NRS 445C.170  “Department” defined.  “Department” means the Department of Motor Vehicles.

      (Added to NRS by 2015, 3601)

      NRS 445C.180  “Diesel fuel of grade number 1” defined.  “Diesel fuel of grade number 1” means a distillate from fuel oil which is of high volatility and used in high-speed diesel engines generally operated under variations in speed and load. The term includes diesel fuel of the type “C-B,” generally used in buses and similar operations.

      (Added to NRS by 2015, 3601)

      NRS 445C.190  “Diesel fuel of grade number 2” defined.  “Diesel fuel of grade number 2” means a distillate from gas oil which is of low volatility and used in high-speed diesel engines generally operated under uniform speed and load. The term includes diesel fuel of the type “R-R,” generally used in railroad locomotives, and type “T-T,” generally used in trucks with diesel engines.

      (Added to NRS by 2015, 3601)

      NRS 445C.200  “Discharge” defined.  “Discharge” means any release, leaking or spilling from a storage tank into water or soil, unless the discharge is authorized by state or federal law.

      (Added to NRS by 2015, 3602)

      NRS 445C.210  “Division” defined.  “Division” means the Division of Environmental Protection of the State Department of Conservation and Natural Resources.

      (Added to NRS by 2015, 3602)

      NRS 445C.220  “Fund” defined.  “Fund” means the Fund for Cleaning Up Discharges of Petroleum.

      (Added to NRS by 2015, 3602)

      NRS 445C.230  “Heating oil” defined.  “Heating oil” means diesel fuel of grade number 1 or 2 or any other form of petroleum used in an oil-fired furnace or boiler for space heating.

      (Added to NRS by 2015, 3602)

      NRS 445C.240  “Motor vehicle fuel” defined.  “Motor vehicle fuel” has the meaning ascribed to it in NRS 365.060.

      (Added to NRS by 2015, 3602)

      NRS 445C.250  “Operator” defined.  “Operator” means a person who owns, controls or is responsible for the operation of a storage tank.

      (Added to NRS by 2015, 3602)

      NRS 445C.260  “Person” defined.  “Person” includes the United States, this State, and any agency or political subdivision of this State.

      (Added to NRS by 2015, 3602)

      NRS 445C.270  “Petroleum” defined.  “Petroleum” means crude oil or any fraction thereof which is liquid at a temperature of 60 degrees Fahrenheit and a pressure of 14.7 pounds per square inch absolute.

      (Added to NRS by 2015, 3602)

      NRS 445C.280  “Storage tank” defined.  “Storage tank” means any tank used to store petroleum, except petroleum for use in a chemical process.

      (Added to NRS by 2015, 3602)

      NRS 445C.290  Legislative findings.  The Legislature finds that:

      1.  Protection of this State’s environment, particularly its supplies of water, requires the prompt cleaning up of any discharge of petroleum from a storage tank.

      2.  Federal law and regulations require each operator of a storage tank to show financial responsibility for this purpose, but the capital of smaller operators is too little to meet these requirements and insurance to cover this liability is prohibitively costly for these smaller operators.

      3.  Free competitive access to the business of distributing petroleum therefore requires a system of funding this liability in which all engaged in the business must participate equitably.

      4.  The fee imposed by NRS 445C.330 is not an excise tax but a fee for engaging in the refining or importation of motor vehicle fuel, diesel fuel of grade number 1, diesel fuel of grade number 2 and heating oil.

      (Added to NRS by 2015, 3602)

                NRS 445C.300  Board to Review Claims: Creation; members; Chair; administrative assistance; compensation of members.

      1.  The Board to Review Claims is hereby created in the Division. The Board consists of:

      (a) The Administrator of the Division;

      (b) The Director of the Department;

      (c) The State Fire Marshal;

      (d) A representative of refiners of petroleum;

      (e) A representative of independent dealers in petroleum;

      (f) A representative of independent retailers of petroleum; and

      (g) A representative of the general public.

      2.  An officer designated as a member of the Board may designate a substitute. The Governor shall appoint the respective representatives designated as members of the Board. Each representative of a field of enterprise must be appointed from a list of three persons nominated by persons engaged in that field in this State, through their trade association if one exists.

      3.  The Board shall select its Chair. The Administrator of the Division shall provide administrative assistance to the Board as required.

      4.  Each member who is appointed by the Governor is entitled to receive a salary of not more than $80, as fixed by the Board, for each day’s attendance at a meeting of the Board.

      5.  While engaged in the business of the Board, each member of the Board is entitled to receive the per diem allowance and travel expenses provided for state officers and employees generally.

      (Added to NRS by 2015, 3602)

      NRS 445C.310  Fund for Cleaning Up Discharges of Petroleum: Creation; administration by Division; adoption of regulations by Board; claims; expenses and interest; resolutions adopted by Board concerning Fund.

      1.  The Fund for Cleaning Up Discharges of Petroleum is hereby created as a special revenue fund in the State Treasury. The Division shall administer the Fund for the purposes prescribed in NRS 445C.150 to 445C.410, inclusive, and the Board shall adopt appropriate regulations for the investigation and payment of claims against the Fund. The Board shall review each claim presented and authorize payment to the extent warranted by the facts of the case.

      2.  The expenses incurred by the Division in performing its duties pursuant to NRS 445C.150 to 445C.410, inclusive, are a charge against the Fund. The interest earned on money in the Fund must be credited to the Fund.

      3.  The Board shall transmit a copy of any resolution that the Board has adopted in carrying out its duties pursuant to this section to the Legislative Counsel within 5 working days after the adoption of the resolution for inclusion in the register of administrative regulations published pursuant to NRS 233B.0653.

      (Added to NRS by 2015, 3603)

      NRS 445C.320  Fund for Cleaning Up Discharges of Petroleum: Expenditures for certain discharges; limitations; reimbursement.  Notwithstanding any provision of NRS 445C.150 to 445C.410, inclusive, to the contrary, and except as otherwise provided in this section:

      1.  The Division may expend not more than $2,000,000 from the Fund per fiscal year as reimbursement for necessary costs incurred by the Division in the response to and cleanup of discharges in the State, including discharges from a storage tank and discharges from a mobile tank that occur during the transportation of petroleum or a petrochemical on roads and highways. The Interim Finance Committee may approve the expenditure of more than $2,000,000 from the Fund in a fiscal year for the purposes described in this subsection. If a discharge also involves another hazardous material, the Division may expend money pursuant to this section in the cleanup of the discharge and the other hazardous material. The Division shall not expend money from the Fund pursuant to this section to clean up discharges from pipelines.

      2.  Except as otherwise provided in this subsection, money from the Fund expended by the Division pursuant to this section must be used to augment, and must not be used to replace or supplant, any money available from other sources for the cleanup of discharges, including, without limitation, reimbursements by operators required to be made to the Division pursuant to NRS 445C.340 and 445C.360. If no money is available from those other sources, the Division may expend money from the Fund pursuant to this section to reimburse the Division for any costs specified in subsection 1.

      3.  If the Division expends money pursuant to this section to clean up a discharge involving:

      (a) Petroleum, the operator of the tank shall reimburse the Division for the operator’s share of the costs for cleaning up the discharge.

      (b) A petrochemical, the person who is responsible for the discharge shall reimburse the Division for the person’s share of the costs for cleaning up the discharge.

Ê The Division shall, upon being reimbursed pursuant to this subsection, deposit that money in the Fund.

      4.  As used in this section:

      (a) “Discharge” means, unless authorized by state or federal law, any:

             (1) Release of a petrochemical into water or soil; or

             (2) Release, leaking or spilling of petroleum or a petrochemical from a tank into water or soil.

      (b) “Operator” means a person who owns, controls or is responsible for the operation of a tank.

      (c) “Petrochemical” means a chemical derived from petroleum or a petroleum feedstock, including, without limitation, perchloroethylene and any degradation product of perchloroethylene.

      (d) “Tank” means a storage tank or a mobile tank used to transport petroleum or a petrochemical received for sale or use in this State.

      (Added to NRS by 2015, 3603)

      NRS 445C.330  Collection of fee for certain fuels and heating oil; exempt products; payment of expenses of Department.

      1.  Except as otherwise provided in subsection 2, the Department shall collect for deposit in the Fund a fee of 0.75 cent for each gallon of motor vehicle fuel, diesel fuel of grade number 1, diesel fuel of grade number 2 and heating oil imported into this State in one of those forms or refined in this State. The fee imposed by this section is in addition to the taxes imposed by chapters 365 and 366 of NRS.

      2.  The fee imposed by subsection 1 does not apply to motor vehicle fuel, diesel fuel of grade number 1, diesel fuel of grade number 2 or heating oil that is:

      (a) Imported or refined by the United States, its unincorporated agencies and instrumentalities, or any incorporated agency or instrumentality of the United States wholly owned by the United States or by a corporation wholly owned by the United States;

      (b) Exported from this State;

      (c) Imported or refined by railroad companies for use in locomotive engines;

      (d) Being transported through this State in interstate commerce; or

      (e) Used as fuel for jet or turbine-powered aircraft.

      3.  The fee is payable on or before the last day of each calendar month for those products subject to the fee that are handled during the preceding calendar month. The Department shall prescribe by regulation the manner of payment of the fee and for this purpose may reasonably classify the persons liable for payment. The Department may, in collecting the fee, employ any administrative power conferred upon it by chapter 360A or 365 of NRS.

      4.  The expenses incurred by the Department in performing its duties under NRS 445C.150 to 445C.410, inclusive, are a charge against the Fund.

      (Added to NRS by 2015, 3604)

      NRS 445C.340  Registration of storage tanks: Collection of annual fee; exempt tanks; reimbursement and other liability for noncompliance.

      1.  Except as otherwise provided in subsection 2, the Division shall collect for deposit in the Fund an annual fee not to exceed $100, set by the Board, for the registration of each storage tank.

      2.  No fee is to be collected, and no registration is required, with respect to a storage tank used to store heating oil for consumption on the same premises where the oil is stored, or a storage tank operated by a person not required to pay the fee for petroleum produced in or imported into this State.

      3.  The operator of a storage tank required to be registered pursuant to this section who fails to register that tank or to pay the annual fee when required shall reimburse the Division for any expense incurred by the Division in cleaning up a discharge from that storage tank and for any discharge of liability to a third person. If, in cleaning up the discharge from that storage tank, the Division expends money from the Fund in accordance with NRS 445C.320, the Division shall, upon being reimbursed by the operator of the storage tank pursuant to this subsection, deposit that money in the Fund.

      (Added to NRS by 2015, 3604)

      NRS 445C.350  Transfer of portion of ending balance in Fund to account created in NRS 408.242.  If the balance in the Fund for Cleaning Up Discharges of Petroleum at the end of any fiscal year is estimated at $7,500,000 or more, the Department shall transfer to the account created pursuant to NRS 408.242 the balance in the Fund for Cleaning Up Discharges of Petroleum which exceeds $7,500,000.

      (Added to NRS by 2015, 3605)

      NRS 445C.360  Report of discharge from tank required; cleanup of discharge; test of tank required for certain coverage for cleanup.

      1.  The operator of every storage tank, and every person who for compensation puts petroleum into a storage tank, shall report to the Division every discharge from that tank of which the operator or other person is aware or has reason to believe has occurred. The Division shall undertake or contract for cleaning up the discharge unless the operator or another person is already acting properly to clean it up. If the Division cleans up the discharge, the operator shall reimburse the Division for the operator’s share of the costs. If, in cleaning up the discharge, the Division expends money from the Fund in accordance with NRS 445C.320, the Division shall, upon being reimbursed by the operator of the storage tank pursuant to this subsection, deposit that money in the Fund.

      2.  Each operator who is required or who chooses to register a tank must, unless the tank has been tested for tightness under the federal standards embodied in 40 C.F.R. § 280.43c since July 1, 1988, test the tank pursuant to those standards before it is eligible for the coverage provided by NRS 445C.370 and 445C.380.

      (Added to NRS by 2015, 3605)

      NRS 445C.370  Allocation of costs resulting from discharge from certain storage tanks for heating oil.  The costs resulting from a discharge from a storage tank which has a capacity of 1,100 gallons or less and is used to store heating oil for consumption on the same premises where the oil is stored must be paid as follows, to the extent applicable:

      1.  The first $250 for cleaning up and the first $250 of liability for damages to a person other than this State or the operator of the tank, or both amounts, by the operator.

      2.  If necessary to protect the environment or the public health and safety, the next $250,000 for cleaning up and the next $250,000 for damages to a person other than this State or the operator of the tank, or both amounts, from the Fund. These limits apply to any one discharge and to the total for discharges from storage tanks controlled by any one operator in any fiscal year. For the purpose of this limitation, a group of operators more than 50 percent of whose net worth is beneficially owned by the same person or persons constitutes one operator.

      3.  Any further cost for cleaning up or for damages, by the operator.

      (Added to NRS by 2015, 3605)

      NRS 445C.380  Allocation of costs resulting from discharge from other storage tanks; requirement to hold public hearings under certain circumstances.  If the costs resulting from a discharge from any other storage tank exceed $5,000, the costs must be paid as follows, to the extent applicable:

      1.  By an operator which is an agency, department, division or political subdivision of the State, 10 percent or $10,000, whichever is less, of the first $1,000,000 for cleaning up each tank and of the first $1,000,000 of liability for damages from each tank to any person other than this State or the operator of the tank, or both amounts. The balance of the first $1,000,000 for cleaning up each tank or for damages from each tank must be paid from the Fund, but the total amount paid from the Fund pursuant to this subsection in any one fiscal year for discharges from two or more storage tanks under the control of any one operator must not exceed $1,980,000 for cleaning up and $1,980,000 for damages.

      2.  By an operator which is a small business, 10 percent of the first $1,000,000 for cleaning up each tank and of the first $1,000,000 of liability for damages from each tank to a person other than this State or the operator of the tank, or both amounts. The total amount paid by an operator pursuant to this subsection must not exceed $50,000 for cleaning up and $50,000 for damages regardless of the number of storage tanks involved. The balance of the first $1,000,000 for cleaning up each tank or for damages from each tank must be paid from the Fund, but the total amount paid from the Fund pursuant to this subsection in any one fiscal year for discharges from two or more storage tanks under the control of any one operator must not exceed $1,900,000 for cleaning up and $1,900,000 for damages. For the purpose of this limitation, a group of operators more than 50 percent of whose net worth is beneficially owned by the same person or persons constitutes one operator.

      3.  By all other operators:

      (a) Ten percent of the first $1,000,000 for cleaning up each tank and of the first $1,000,000 of liability for damages from each tank to a person other than this State or the operator of the tank, or both amounts.

      (b) Ninety percent of the first $1,000,000 for cleaning up each tank or for damages from each tank must be paid from the Fund.

Ê The total amount paid from the Fund pursuant to paragraph (b) in any one fiscal year for discharges from two or more storage tanks under the control of any one operator must not exceed $1,800,000 for cleaning up and $1,800,000 for damages. For the purpose of this limitation, a group of operators more than 50 percent of whose net worth is beneficially owned by the same person or persons constitutes one operator.

      4.  Any further cost for cleaning up or for damages which is in excess of the amounts paid pursuant to subsections 1, 2 and 3 must be paid by the operator.

      5.  A political subdivision of the State that receives money from the Fund pursuant to subsection 1 to pay for the costs of cleaning up shall hold one public hearing upon initiation of the cleanup and one public hearing every 3 months thereafter until the cleanup is completed to ensure that the cleanup complies with any requirements of the Division concerning the cost-effectiveness of cleaning up. The costs incurred by the political subdivision for the hearing must not be attributed to the political subdivision as part of the costs paid by the political subdivision pursuant to subsection 1.

      6.  For the purposes of this section, a small business is a business which receives less than $500,000 in gross annual receipts from the site where the tank is located.

      (Added to NRS by 2015, 3605)

      NRS 445C.390  Liability for costs to clean up discharge caused by willful or wanton misconduct, gross negligence or violation of statute or regulation.

      1.  Any person who, through willful or wanton misconduct, through gross negligence or through violation of any applicable statute or regulation, including specifically any state or federal standard pertaining to the preparation or maintenance of sites for storage tanks, proximately causes a discharge is liable to the Division for any cost in cleaning up the discharge or paying for it to be cleaned up.

      2.  If a discharge occurs, the site of the tank and any other premises affected by the discharge must be brought into compliance with any applicable standard as described in subsection 1.

      (Added to NRS by 2015, 3606)

      NRS 445C.400  Pro rata reduction if balance of Fund insufficient for full payment.  If the balance in the Fund is insufficient to pay in full all amounts payable from it under NRS 445C.150 to 445C.410, inclusive, these amounts must be reduced pro rata and the amounts so withheld must be paid pro rata as additional money becomes available in the Fund.

      (Added to NRS by 2015, 3606)

      NRS 445C.410  Tanks exempted from certain provisions; optional coverage of exempted tank.

      1.  Except as otherwise specifically provided in NRS 445C.320, the provisions of NRS 445C.340 to 445C.400, inclusive, do not apply to any tank which:

      (a) Contains petroleum being transported through this State in interstate commerce, but do apply to a tank being used to store petroleum received for sale or use in this State;

      (b) Contains fuel for jet or turbine-powered aircraft, or is above ground and has a capacity of 30,000 gallons or less, unless in either case the operator complies with subsection 2; or

      (c) Is above ground and has a capacity of more than 30,000 gallons.

      2.  The operator of a tank exempted by paragraph (b) of subsection 1 may obtain the coverage provided by NRS 445C.370 and 445C.380 by applying to the Board, paying the fee set pursuant to NRS 445C.340 for its registration, and, if the tank is used to store fuel for jet or turbine-powered aircraft, reporting monthly the number of gallons of fuel put into the tank and paying the fee required by NRS 445C.330. Coverage pursuant to this subsection begins 6 months after the tank is registered and the required fee first paid.

      (Added to NRS by 2015, 3607)