NAC: CHAPTER 445C - ENVIRONMENTAL REQUIREMENTS; CLEANUP OF DISCHARGED PETROLEUM

[Rev. 12/2/2022 3:26:23 PM]

[NAC-445C Revised Date: 11-22]

CHAPTER 445C - ENVIRONMENTAL REQUIREMENTS; CLEANUP OF DISCHARGED PETROLEUM

GENERAL PROVISIONS

445C.010 Definitions.

445C.020 “Division” defined.

445C.030 “Environmental audit” defined.

445C.040 “Environmental audit agreement” defined.

445C.050 “Environmental requirement” defined.

445C.060 “Regulated facility” defined.

445C.070 “Regulated person” defined.

445C.080 “Regulatory agency” defined.

445C.100 Requirements to enter into environmental audit agreement.

445C.110 Contents of environmental audit agreement.

445C.120 Certification of consultant by Division required.

445C.130 Violation of environmental requirement; contents of enforceable agreement.

445C.140 Public records; public registry.

CLEANUP OF DISCHARGED PETROLEUM

445C.200 Definitions.

445C.210 Interpretation of certain statutory terms.

445C.220 Designation as “small business.”

445C.230 Adoption by reference of certain provisions of Code of Federal Regulations and International Fire Code.

445C.240 Annual fee and application for registration of storage tank; letter of coverage.

445C.250 Testing and inspection of storage tanks; maintenance of records.

445C.255 Division may contract with third party to provide owners and operators technical assistance.

445C.260 Financial responsibility of operators.

445C.270 Discharges: Duties of operators; submission and contents of application for coverage; maintenance of records.

445C.280 Operator to notify Division of civil action for damages; submission of order of judgment or settlement agreement required for payment from Fund.

445C.290 Discharges: Authority of Administrator of Division.

445C.300 Factors considered in determining necessity for cleanup of discharge from certain storage tanks.

445C.310 Form of claim for reimbursement; time limitations for filing claims; payment to operator, certified environmental manager, vendor or contractor; payment required of operator or certified environmental manager; payment of per diem allowance and travel expenses.

445C.320 Grants for purchase and installation of upgrades: Division to make available from money in Fund.

445C.330 Grants for purchase and installation of upgrades: Information to be provided by operator.

445C.340 Grants for purchase and installation of upgrades: Application requirements; confidentiality of certain records.

445C.350 Grants for purchase and installation of upgrades: Division to review applications, rank applicants, award grants, allocate available grant money; multiple grant allocations to single applicant.

445C.360 Grants for purchase and installation of upgrades: Requirements for recipient and Division; retention of records.

445C.370 Grants for purchase and installation of upgrades: Recipient to make certain records available for audit and inspection by the Division.

445C.380 Grants for purchase and installation of upgrades: Authorized uses of grant money; obligations of recipient to repay in certain circumstances.

445C.390 Severability of provisions.

GENERAL PROVISIONS

NAC 445C.010 Definitions. (NRS 445C.120) As used in this chapter, unless the context otherwise requires, the words and terms defined in NAC 445C.020 to 445C.080, inclusive, have the meanings ascribed to them in those sections.

(Added to NAC by Environmental Comm’n by R201-97, eff. 3-5-98)

NAC 445C.020 “Division” defined. (NRS 445C.120) “Division” means the Division of Environmental Protection of the State Department of Conservation and Natural Resources.

(Added to NAC by Environmental Comm’n by R201-97, eff. 3-5-98)

NAC 445C.030 “Environmental audit” defined. (NRS 445C.120) “Environmental audit” has the meaning ascribed to it in NRS 445C.020.

(Added to NAC by Environmental Comm’n by R201-97, eff. 3-5-98)

NAC 445C.040 “Environmental audit agreement” defined. (NRS 445C.120) “Environmental audit agreement” means a written agreement between a regulatory agency and a regulated person that:

1. Allows the regulated person to conduct an environmental audit; and

2. Complies with the provisions of this chapter and chapter 445C of NRS.

(Added to NAC by Environmental Comm’n by R201-97, eff. 3-5-98)

NAC 445C.050 “Environmental requirement” defined. (NRS 445C.120) “Environmental requirement” has the meaning ascribed to it in NRS 445C.030.

(Added to NAC by Environmental Comm’n by R201-97, eff. 3-5-98)

NAC 445C.060 “Regulated facility” defined. (NRS 445C.120) “Regulated facility” has the meaning ascribed to it in NRS 445C.040.

(Added to NAC by Environmental Comm’n by R201-97, eff. 3-5-98)

NAC 445C.070 “Regulated person” defined. (NRS 445C.120) “Regulated person” has the meaning ascribed to it in NRS 445C.050.

(Added to NAC by Environmental Comm’n by R201-97, eff. 3-5-98)

NAC 445C.080 “Regulatory agency” defined. (NRS 445C.120) “Regulatory agency” has the meaning ascribed to it in NRS 445C.060.

(Added to NAC by Environmental Comm’n by R201-97, eff. 3-5-98)

NAC 445C.100 Requirements to enter into environmental audit agreement. (NRS 445C.120)

1. A regulatory agency shall not enter into an environmental audit agreement with a regulated person for a particular environmental requirement if the regulated person:

(a) Has been cited for a violation of that particular environmental requirement in the immediately preceding 3 years; or

(b) Is specifically required to comply with that particular environmental requirement pursuant to:

(1) The general or specific conditions or limitations contained in a permit; or

(2) The terms of a judicial order, administrative order, consent order, consent agreement or any other agreement between the regulated person and a regulatory agency.

2. The provisions of this section do not limit the authority of the regulatory agency to enter into an environmental audit agreement with the regulated person for any other environmental requirement that is not subject to the provisions of subsection 1.

(Added to NAC by Environmental Comm’n by R201-97, eff. 3-5-98)

NAC 445C.110 Contents of environmental audit agreement. (NRS 445C.120) In addition to the requirements set forth in NRS 445C.070 and 445C.080, an environmental audit agreement must include, but is not limited to:

1. The name of each regulated facility that is subject to the agreement.

2. The name of each regulated person who is subject to the agreement.

3. The statutory and regulatory scope of the environmental audit.

4. An enforceable commitment by the regulated person to disclose voluntarily any violation of an environmental requirement that is discovered as a result of the environmental audit.

5. The methods, processes and procedures that are to be used to conduct the environmental audit and to evaluate compliance with environmental requirements.

6. The identity of each person who will be conducting the environmental audit, including, but not limited to, any consultant or contractor.

7. The period within which the environmental audit must be conducted, including, but not limited to, the date for submitting a final report for the environmental audit.

8. The period within which any violation of an environmental requirement that is discovered as a result of the environmental audit must be reported.

9. The procedures for modifying the environmental audit agreement if the regulated person and the regulatory agency specifically agree to a modification.

10. The procedures for terminating the environmental audit agreement if the regulated person does not comply with the terms of the agreement.

11. A provision informing the regulated person that the provisions of this chapter and chapter 445C of NRS:

(a) Apply to state and local environmental requirements only; and

(b) Do not create any rights, privileges or immunities with regard to any actions taken by the Federal Government pursuant to a federal law or regulation, unless the federal law or regulation provides otherwise.

(Added to NAC by Environmental Comm’n by R201-97, eff. 3-5-98)

NAC 445C.120 Certification of consultant by Division required. (NRS 445C.120)

1. A consultant who is hired by a regulated person to conduct an environmental audit must be certified by the Division pursuant to NAC 459.970 to 459.9729, inclusive.

2. As used in this section, “consultant” has the meaning ascribed to it in NAC 459.9701.

(Added to NAC by Environmental Comm’n by R201-97, eff. 3-5-98)

NAC 445C.130 Violation of environmental requirement; contents of enforceable agreement. (NRS 445C.120) If a violation of an environmental requirement is discovered as a result of an environmental audit, the regulated person shall enter into an enforceable agreement with the regulatory agency. The enforceable agreement must include, but is not limited to:

1. A list of each specific violation of an environmental requirement that was discovered as a result of the environmental audit.

2. The actions that are to be taken by the regulated person to bring the regulated facility into compliance and the dates by which those actions are to be completed.

3. The actions that are to be taken by the regulated person to remedy any damage or other harm caused by each violation and the dates by which those actions are to be completed.

4. The actions that are to be taken by the regulated person to prevent similar violations in the future and the dates by which those actions are to be completed.

(Added to NAC by Environmental Comm’n by R201-97, eff. 3-5-98)

NAC 445C.140 Public records; public registry. (NRS 445C.120)

1. A regulatory agency shall consider the following to be public records that are open to inspection and copying pursuant to the provisions of chapter 239 of NRS:

(a) All environmental audit agreements.

(b) All information relating to an environmental audit that is obtained by a regulatory agency, whether or not such information is privileged and inadmissible in an administrative proceeding or civil action against a regulated person pursuant to NRS 445C.110. The information described in this paragraph includes, but is not limited to, all data, documents, reports, results or schedules relating to an environmental audit that are submitted by a regulated person to a regulatory agency.

2. The Division shall maintain a public registry that contains:

(a) A listing of each regulated person who has entered into an environmental audit agreement and each environmental requirement that is covered by each such agreement; and

(b) Any other information relating to environmental audits and environmental audit agreements that the Division determines is appropriate for inclusion in the public registry.

(Added to NAC by Environmental Comm’n by R201-97, eff. 3-5-98)

CLEANUP OF DISCHARGED PETROLEUM

NAC 445C.200 Definitions. (NRS 445C.310) As used in NAC 445C.200 to 445C.390, inclusive, unless the context otherwise requires:

1. “Applicant” means an operator of a storage tank that is eligible and applies to the Division for a grant pursuant to the provisions of NAC 445C.320 to 445C.380, inclusive.

2. “Board” means the Board to Review Claims.

3. “Division” means the Division of Environmental Protection of the State Department of Conservation and Natural Resources.

4. “Fund” means the Fund for Cleaning Up Discharges of Petroleum.

5. “Petroleum dispensing location” has the meaning ascribed to it in NRS 445C.310.

6. “Portable storage tank” means a storage tank with a capacity of 60 gallons or more that is used above the ground and may be moved without disassembly of the tank to more than one location for the temporary storage of petroleum.

7. “Recipient” means an applicant who receives a grant of money from the Division pursuant to the provisions of NAC 445C.320 to 445C.380, inclusive.

8. “Registered storage tank” means a storage tank operated by a person who is required to or who elects to register it for coverage provided by the Fund.

9. “Storage tank” has the meaning ascribed to it in NAC 445C.210.

10. “Upgrade” means the purchase and installation of spill buckets, containment sumps and any other equipment approved by the Division that is subject to periodic testing and may require replacement to prevent a release to the environment.

(Added to NAC by Bd. to Review Claims, eff. 6-15-90; A 12-23-91; 1-22-96; R001-99, 11-19-99; A by Div. of Environmental Protec. by R226-05, 5-4-2006; A by Bd. to Review Claims by R032-17, 12-19-2017)—(Substituted in revision for NAC 590.700)

NAC 445C.210 Interpretation of certain statutory terms. (NRS 445C.310, 445C.380)

1. For the purposes of NRS 445C.150 to 445C.410, inclusive, the Board interprets:

(a) “Costs for cleaning up” to mean any expense of corrective action necessitated by a discharge from a storage tank. The term does not include:

(1) The expense of any bond posted to release a writ of attachment;

(2) Any expense incurred by an operator to investigate or defend any claim or suit, except any such expense incurred at the request of the Board;

(3) Any expense taxed against the operator as costs of suit in a suit or administrative proceeding;

(4) Any award of prejudgment interest, except for interest awarded on that part of the judgment paid by the Fund;

(5) Any expense of repairing, replacing or upgrading any storage tank or its contents;

(6) Any expense incurred by an operator during the transportation, loading or unloading of a portable storage tank; and

(7) Any loss of income or revenue of the business of an operator that is incurred by an operator during a corrective action necessitated by a discharge.

(b) “Damages” to mean any money the operator of a storage tank becomes legally obligated to pay as damages because of bodily injury or property damage to any person other than the State or the operator caused by a discharge. The term does not include:

(1) Any expense excluded from the definition contained in paragraph (a);

(2) Any obligation of the operator imposed pursuant to any statute providing benefits for workers’ compensation, disability or unemployment compensation;

(3) Any bodily injury to an employee of the operator, or the spouse, parent, brother or sister of the employee, arising out of and in the course of the employee’s employment by the operator. This exclusion applies whether the operator may be liable as an employer or in any other capacity, and to any obligation to share damages with or reimburse another person who must pay damages because of the injury;

(4) Any obligation of the operator imposed by a contractual assumption of liability; or

(5) Any expense incurred by an operator during the transportation, loading or unloading of a portable storage tank.

(1) Stops the release of petroleum;

(2) Identifies or mitigates existing or potential hazards from fire, explosion, vapor or other hazards associated with a release; or

(3) Prevents the migration of petroleum which poses a substantial imminent threat to the environment.

(d) “Marina storage tank” to mean a petroleum storage tank used to provide fuel to water vessels, at least 90 percent of which is either above ground level or in or over water and which has a capacity of at least 110 gallons but not more than 12,000 gallons. The term includes all piping connected to the marina storage tank, except piping, valves, hoses, filters and nozzles associated with the fuel dispenser.

(e) “Site” to mean the facility, whether situated on a single parcel or on multiple adjacent parcels, where the storage tank is located.

(f) “Small business” to mean a business which:

(1) Receives $4,000,000 or less in gross annual receipts or in total income, whichever is greater, from the site where the storage tank is located, based upon the average for the following period:

(I) If the operator or business has been in operation for 3 or more fiscal years on the date on which the discharge is discovered, the 3 fiscal years immediately preceding the date on which the discharge was discovered; or

(II) If the operator or business has been in operation for less than 3 fiscal years on the date the discharge is discovered, the total number of years the operator or business has been in operation;

(2) Has a combined annual average throughput of 1,000,000 gallons or less for all petroleum products stored on site and sold to the public during the previous 2 years;

(3) Employs 150 or fewer full-time or part-time employees; and

(4) Is registered and in good standing with the Secretary of State.

(g) “Storage tank” to mean any tank, and the distribution piping associated with the tank, including any connected pipes, except piping above the dispenser shear valve, used to store petroleum. The term does not include any tank that is:

(1) Exempted from the provisions of NRS 445C.150 to 445C.410, inclusive, unless the operator of the tank chooses to register it pursuant to subsection 2 of NRS 445C.410;

(2) Excluded from the definition of “underground storage tank” in 40 C.F.R. § 280.12, except that:

(I) A farm or residential tank having a capacity of 1,100 gallons or less and that is used for storing motor fuel for noncommercial purposes is a storage tank; and

(II) A tank used to store heating oil for consumption on the same premises where the oil is stored is a storage tank;

(3) Permanently closed in accordance with NAC 459.9972 and 40 C.F.R. § 280.71; or

(4) Not federally regulated which is permanently closed in accordance with a rule or an ordinance of a local governmental entity.

2. As used in this section:

(a) “Bodily injury” means any injury, sickness, disease or death suffered by a person as a proximate result of a discharge.

(b) “Combined annual average throughput” means the average annual volume of petroleum sold, which is calculated by the Division and based on the information provided pursuant to subsection 2 of NAC 445C.220.

(c) “Property damage” means any actual injury to real or tangible personal property, loss of use of the property, or both, occurring as a proximate result of a discharge.

(d) “Suit” means any civil proceeding in which damages are sought for which the Fund is potentially liable. The term includes any arbitration proceeding in which such damages are sought, to which the operator must submit or to which he or she submits with the consent of the Board.

(Added to NAC by Bd. to Review Claims, eff. 6-15-90; A 12-23-91; 1-22-96; A by Div. of Environmental Protec. by R226-05, 5-4-2006; A by Bd. to Review Claims by R049-21, 4-11-2022)—(Substituted in revision for NAC 590.710)

NAC 445C.220 Designation as “small business.” (NRS 445C.310) To be designated as a small business as described in paragraph (f) of subsection 1 of NAC 445C.210, an operator must submit the following to the Division:

1. Copies of forms reporting federal income tax which show the operator’s gross annual receipts or total income for the following period:

(a) If the operator or business has been in operation for 3 or more fiscal years on the date on which the discharge is discovered, the 3 fiscal years immediately preceding the date on which the discharge was discovered; or

(b) If the operator or business has been in operation for less than 3 fiscal years on the date the discharge is discovered, the total number of years the operator or business has been in operation.

2. Records of the volume of petroleum sold at the site for the following period:

(a) If the operator has been in operation for 2 or more years on the date on which the discharge is discovered, the 2 years immediately preceding the date on which the discharge was discovered; or

(b) If the operator has been in operation for less than 2 years on the date the discharge is discovered, each month the operator has been in operation.

3. An application for coverage by the Fund, as described in subsection 2 of NAC 445C.270, or, if the operator becomes responsible for the management and cleanup of a discharge from a storage tank and the operator was not affiliated with the operator or business that caused the discharge, a notification of a change in operator, which must be submitted on a form approved by the Division.

4. If requested by the Division, the operator shall demonstrate to the Division that he or she is registered and in good standing with the Secretary of State.

5. Any other information requested by the Division which is necessary to determine whether the operator is a small business.

(Added to NAC by Bd. to Review Claims, eff. 1-22-96; A by Div. of Environmental Protec. by R226-05, 5-4-2006; A by Bd. to Review Claims by R049-21, 4-11-2022)—(Substituted in revision for NAC 590.714)

NAC 445C.230 Adoption by reference of certain provisions of Code of Federal Regulations and International Fire Code. (NRS 445C.310) The Board hereby adopts by reference:

1. The provisions of 40 C.F.R. §§ 280.10 to 280.74, inclusive, and 280.240 to 280.245, inclusive, as they existed on July 15, 2015, except when they conflict with NAC 445C.200 to 445C.390, inclusive. A copy of the volume containing these provisions may be:

(a) Obtained at a cost of $56:

(1) By mail from the U.S. Government Publishing Office, P.O. Box 979050, St. Louis, Missouri 63197-9000;

(2) By toll-free telephone at (866) 512-1800; or

(3) At https://bookstore.gpo.gov; and

(b) Viewed in electronic format at https://ecfr.federalregister.gov/.

2. The provisions of chapters 2, 22 and 34 of the International Fire Code, 2003 edition. A copy of the volume containing these provisions may be obtained at a cost of $78.50 from the International Code Council at the Internet address http://www.iccsafe.org.

(Added to NAC by Bd. to Review Claims, eff. 6-15-90; A 12-23-91; A by Div. of Environmental Protec. by R226-05, 5-4-2006; A by Bd. to Review Claims by R049-21, 4-11-2022)—(Substituted in revision for NAC 590.720)

NAC 445C.240 Annual fee and application for registration of storage tank; letter of coverage. (NRS 445C.310, 445C.340)

1. Except as otherwise provided in this subsection, each operator of a registered storage tank shall, on or before October 1 of each year, pay a fee in the amount of $100 for registration for coverage provided by the Fund and submit an application for registration to the Division in the form prescribed by the Board. An application for registration is not required from an operator who has filed with the Division Form 7530-1, “Notification for Underground Storage Tanks,” adopted by the United States Environmental Protection Agency.

2. The Division will bill the operator for the annual registration fee not less than 30 days before the date the fee is due. The failure of an operator to receive a bill does not relieve the operator of his or her obligation to pay the fee on or before the date it is due.

3. Upon compliance by the operator with the provisions of subsection 1, the Division will issue a letter evidencing the coverage provided by NRS 445C.370 or 445C.380, whichever applies. The letter will:

(a) Include the name and address of the facility at which the storage tank is located, together with any other information required to identify the storage tank; and

(b) Set forth the amount of money available in the Fund, as of the date of the letter, to pay costs or damages resulting from any discharge from the storage tank which qualifies for coverage provided by NRS 445C.370 or 445C.380, as applicable.

4. After January 1, 1992, if a discharge from a storage tank is discovered during a period in which the annual registration fee for that storage tank is delinquent, the Division will not use money in the Fund to pay costs or damages resulting from any discharge from that storage tank.

(Added to NAC by Bd. to Review Claims, eff. 6-15-90; A 12-23-91; 10-16-95; A by Div. of Environmental Protec. by R226-05, 5-4-2006)—(Substituted in revision for NAC 590.730)

NAC 445C.250 Testing and inspection of storage tanks; maintenance of records. (NRS 445C.310, 445C.360)

1. Except as otherwise provided in this section, each operator of a registered underground storage tank shall comply with the provisions of NAC 459.994.

2. The operator of a registered storage tank that is above ground shall perform or cause to be performed an inspection of the storage tank at least once each month. The monthly inspection must include, without limitation:

(a) Visual inspection of the aboveground storage tank system to identify cracks or other defects in the secondary containment area and product transfer area;

(b) Visual inspection of the exterior surfaces of the storage tanks, piping, valves, pumps and other equipment for cracks, corrosion, releases and maintenance deficiencies and to identify malfunctioning equipment, needed maintenance and needed revisions to current operating practices;

(d) Unless the secondary containment of the storage tank has a sound concrete floor or liner or is of a double-walled construction:

(1) Visual inspection of the area between the outer shell of the storage tank or the floor of the storage tank and the containment area; or

(2) Vapor monitoring of the soil directly beneath the storage tank bottom or perimeter and the water table.

3. The operator of a registered storage tank that is above ground and which has any portion of the distribution piping associated with the storage tank underground so that the distribution piping cannot be visually inspected shall, at least once each year, hire:

(a) A contractor who is certified by the Division to perform line tightness testing in accordance with 40 C.F.R. § 280.44(b); and

(b) If the underground portion of the distribution piping associated with the storage tank is constructed of metal and the metal is in contact with the ground, a qualified cathodic protection tester to verify that the distribution piping which is metal and which is in contact with the ground is adequately protected from corrosion in accordance with 40 C.F.R. § 280.31. If the distribution piping which is metal and which is in contact with the ground is not adequately protected from corrosion, the operator must:

(1) Upgrade the distribution piping pursuant to 40 C.F.R. § 280.21(c); or

(2) Repair the existing cathodic protection system to ensure compliance with 40 C.F.R. § 280.21(c).

4. A registered portable storage tank must be inspected visually by the operator immediately before and after the portable storage tank is relocated.

5. A marina storage tank must be tested and inspected in accordance with the provisions of NAC 459.9938.

6. The operator of a registered storage tank shall maintain a record of each test or inspection conducted pursuant to this section on a form approved by the Division in the following manner:

(a) For at least 12 months after the date of the test or inspection for an underground storage tank with such records containing the information required by 40 C.F.R. § 280.45; or

(b) For at least 3 years after the date of the test or inspection for a storage tank that is above ground.

7. The operator of a registered storage tank that is above ground shall maintain a record of any maintenance or repairs for the storage tank that is made as a result of a test or inspection conducted pursuant to this section. Such a record must be maintained on a form approved by the Division for at least 3 years after the date of the maintenance or repair.

8. An operator who is required to maintain a record pursuant to subsection 6 or 7 shall provide to the Division a copy of the record when so requested by the Division.

(Added to NAC by Bd. to Review Claims, eff. 6-15-90; A 12-23-91; 1-22-96; A by Div. of Environmental Protec. by R226-05, 5-4-2006; A by Environmental Comm’n by R106-16, 11-2-2016; A by Bd. to Review Claims by R049-21, 4-11-2022)—(Substituted in revision for NAC 590.740)

NAC 445C.255 Division may contract with third party to provide owners and operators technical assistance. (NRS 445C.310) The Division may contract or enter into an agreement with a third party to provide technical assistance to owners and operators of storage tanks for the purpose of facilitating compliance with state and federal regulations applicable to the operation of storage tanks.

(Added to NAC by Bd. to Review Claims by R032-17, eff. 12-19-2017)

NAC 445C.260 Financial responsibility of operators. (NRS 445C.310) Upon request, an operator of a regulated underground storage tank shall submit to the Division evidence of his or her financial responsibility. An operator may demonstrate his or her financial responsibility in any manner permitted by NAC 459.995.

(Added to NAC by Bd. to Review Claims, eff. 6-15-90; A 12-23-91; A by Div. of Environmental Protec. by R226-05, 5-4-2006)—(Substituted in revision for NAC 590.750)

NAC 445C.270 Discharges: Duties of operators; submission and contents of application for coverage; maintenance of records. (NRS 445C.310, 445C.360)

1. The operator of a storage tank shall report any suspected or confirmed discharge from a storage tank to the environment promptly in accordance with the requirements of NAC 445A.347 and 40 C.F.R. §§ 280.50, 280.53 and 280.61.

2. As soon as possible after the discharge, but not later than 12 months after the date the discharge is discovered, the operator shall submit to the Division an application for coverage by the Fund for the discharge. The Division will not accept an application for coverage after the deadline unless the operator demonstrates good cause for the failure to comply with the deadline. The application for coverage must be submitted on the form prescribed by the Division and must include:

(a) A written description of how, when and where the discharge occurred;

(b) A description of any damage known to the operator to have been caused by the discharge;

(c) If the services of an environmental manager, as defined in NAC 459.9704, have been obtained, the name of that person; and

(d) If the operator is seeking to be designated as a small business as described in paragraph (f) of subsection 1 of NAC 445C.210, the information required by NAC 445C.220.

3. The operator shall take all reasonable steps to protect the site of the discharge from further damage in accordance with the provisions of 40 C.F.R. §§ 280.61 and 280.62.

4. The operator shall:

(a) Prepare and maintain a record of all costs incurred by him or her in cleaning up the discharge.

(b) Permit the Division to inspect any property or records relating to the discharge or damage caused by the discharge.

(1) An emergency action; or

(2) The initial response actions and abatement measures prescribed by 40 C.F.R. §§ 280.61 and 280.62,

Ê will exceed $5,000.

(d) If the operator is seeking reimbursement by the Fund for the costs of cleaning up the discharge from a storage tank or of liability for damages, unless an employee of the operator will be providing services that are exempted from the provisions of NAC 459.970 to 459.97295, inclusive, by subsection 1 of NAC 459.9718, obtain the services of a person who is certified as an environmental manager, as defined in NAC 459.9704.

(e) Obtain approval from the Division or secure not less than three competitive bids for a task included in a corrective action that costs more than $6,000, an amount which may be adjusted annually by the Division and published on the website of the Division on or before March 1 of each year to reflect the change in the Consumer Price Index for All Urban Consumers published by the United States Department of Labor between December 2018 and December of the immediately preceding year and rounded to the nearest $1,000, if:

(1) The corrective action necessitated by a discharge from a storage tank is not an emergency action pursuant to paragraph (c) of subsection 1 of NAC 445C.210 or an initial abatement measure prescribed by 40 C.F.R. § 280.62; and

(2) The operator is seeking reimbursement by the Fund for the costs of cleaning up the discharge from a storage tank or of liability for damages.

(Added to NAC by Bd. to Review Claims, eff. 6-15-90; A 12-23-91; 1-22-96; A by Div. of Environmental Protec. by R226-05, 5-4-2006; A by Bd. to Review Claims by R009-16, 6-28-2016; A by Environmental Comm’n by R123-16, 11-2-2016; A by Bd. to Review Claims by R049-21, 4-11-2022)—(Substituted in revision for NAC 590.760)

NAC 445C.280 Operator to notify Division of civil action for damages; submission of order of judgment or settlement agreement required for payment from Fund. (NRS 445C.310)

1. An operator shall notify the Division of a civil action brought against him or her by another person for damages alleged to have been caused by a discharge from the storage tank of the operator. The notice must be in writing and submitted to the Division within 60 days after the date the operator is properly served with the summons and a copy of the complaint that commenced the civil action.

2. The Board may:

(a) Consider failure to notify the Division pursuant to the provisions of subsection 1 as a basis for denial of payment from the Fund.

(b) Excuse a failure to provide notice pursuant to the provisions of subsection 1 upon demonstration of good cause for the failure to comply.

3. An operator who is required to provide notice pursuant to the provisions of subsection 1 and who seeks payment from the Fund for liability for damages must submit, as a supporting document:

(a) A copy of a final judgment which has been entered with a court and which orders the operator to pay damages; or

(b) If the operator and the other party to the civil action settled the claim, a copy of the settlement agreement.

Ê The Board will not authorize payment from the Fund unless it has received the order of judgment or it has received the settlement agreement and has approved the terms of such agreement.

(Added to NAC by Bd. to Review Claims by R001-99, eff. 11-19-99)—(Substituted in revision for NAC 590.765)

NAC 445C.290 Discharges: Authority of Administrator of Division. (NRS 445C.310) If a discharge occurs from a storage tank, the Administrator of the Division may, at such times as are reasonably required:

1. Question the operator of the storage tank, under oath, about any matter relating to the discharge; and

2. Examine the books and records of the operator.

(Added to NAC by Bd. to Review Claims, eff. 6-15-90; A by R049-21, 4-11-2022)—(Substituted in revision for NAC 590.770)

NAC 445C.300 Factors considered in determining necessity for cleanup of discharge from certain storage tanks. (NRS 445C.310) In determining whether cleaning up a discharge from a storage tank:

1. Which has a capacity of 1,100 gallons or less; and

2. Which is used to store heating oil for consumption on the same premises where the oil is stored,

Ê is necessary to protect the environment or the public health and safety, the Division may consider the factors listed in subsection 2 of NAC 445A.227.

(Added to NAC by Bd. to Review Claims, eff. 1-22-96; A by Environmental Comm’n by R189-08, 8-25-2009)—(Substituted in revision for NAC 590.774)

NAC 445C.310 Form of claim for reimbursement; time limitations for filing claims; payment to operator, certified environmental manager, vendor or contractor; payment required of operator or certified environmental manager; payment of per diem allowance and travel expenses. (NRS 445C.310)

1. An operator, certified environmental manager, vendor or contractor who seeks to be reimbursed by the Fund for costs for cleaning up or liability for damages resulting from a discharge must submit to the Division pursuant to subsection 2 a verified claim for reimbursement in the form prescribed by the Board along with any supporting documents required to substantiate his or her eligibility for reimbursement.

2. An operator, certified environmental manager, vendor or contractor must submit:

(a) The initial claim for reimbursement within 12 months after the date of the discharge, as identified in the application for coverage pursuant to subsection 2 of NAC 445C.270;

(b) Any subsequent claims within 12 months after the date on which the operator, certified environmental manager, vendor or contractor performed the cleanup activity for which reimbursement is being requested; and

Ê The Board will not accept a claim after the applicable deadline set forth in paragraph (a), (b) or (c) unless the operator, certified environmental manager, vendor or contractor demonstrates good cause for the failure to comply with the deadline.

3. The operator or certified environmental manager shall provide any additional information required by the Board in order to determine his or her eligibility for payment from the Fund.

4. The Board may authorize payment from the Fund to:

(a) An operator;

(b) A certified environmental manager;

(d) A contractor; or

(e) Any combination of persons listed in paragraphs (a) to (d), inclusive, jointly.

5. If money from the Fund is paid to an operator or certified environmental manager before payment is made to a vendor or contractor, or both, the operator or certified environmental manager, as applicable, shall:

(a) As soon as practicable but not more than 60 days after receiving the money from the Fund, which may be extended by the Division for good cause shown, pay the vendor or contractor, or both.

(b) Not more than 60 days after receiving the money from the Fund, which may be extended by the Division for good cause shown, provide the Division with confirmation that, in accordance with paragraph (a), the operator or certified environmental manager, as applicable, made payment to the vendor or contractor, or both, of the money paid by the Board. If confirmation of payment is not received by the Division within 60 days after the operator or certified environmental manager, as applicable, receives the money from the Fund, the Board will not approve payment of any subsequent claims until the second meeting of the Board after confirmation of payment is received.

(c) Demonstrate to the Division the payment of the applicable cost allocation that the operator must pay pursuant to NRS 445C.370 or 445C.380, as applicable. Upon receiving the submission for the payment of the final claim from the Fund, the Division may require that the operator demonstrate payment of the applicable cost allocation which the operator must pay before the Division pays the remaining allocation from the Fund that was approved by the Board.

6. If an operator or certified environmental manager fails to demonstrate to the Division that payment was made to a vendor or contractor for costs approved and paid by the Board within 60 days, which may be extended by the Division for good cause shown:

(a) The operator or certified environmental manager, as applicable, shall reimburse the Fund any money that is not confirmed pursuant to paragraph (b) of subsection 5, up to the full claim amount, that was paid by the Board; and

(b) The Board will not approve the payment of any subsequent claim unless the operator or certified environmental manager, as applicable, reimburses the Fund. Any subsequent claim, including the claim associated with the reimbursed money, may be presented to the Board for approval and payment only after the operator or certified environmental manager, as applicable, reimburses the Fund.

7. If an operator or certified environmental manager is entitled to receive payment for his or her necessary expenses for the costs of cleaning up, the Board will authorize payment of the per diem allowance and travel expenses at the same rate provided for state officers and employees generally.

8. As used in this section:

(a) “Certified environmental manager” means a person who is an environmental manager, as defined in NAC 459.9704, and whose services are obtained by an operator.

(b) “Claim” or “claim for reimbursement” means a request for reimbursement by the Fund of a sum of money, accompanied by the required supporting documents. The term does not include an application for coverage under the Fund.

(Added to NAC by Bd. to Review Claims, eff. 6-15-90; A 12-23-91; 11-3-92; A by Div. of Environmental Protec., 1-10-94; A by Bd. to Review Claims, 1-22-96; R009-16, 6-28-2016; R049-21, 4-11-2022)—(Substituted in revision for NAC 590.780)

NAC 445C.320 Grants for purchase and installation of upgrades: Division to make available from money in Fund. (NRS 445C.310) The Division shall make available from the money remaining in the Fund at the end of each fiscal year and after all claims against the Fund have been paid pursuant to NRS 445C.370 and 445C.380 and all cleanup costs have been paid pursuant to NRS 445C.320 money for grants to finance or assist in financing the purchase and installation of upgrades necessary to comply with the provisions of NAC 459.9921 to 459.999, inclusive, in accordance with the provisions of NAC 445C.320 to 445C.380, inclusive.

(Added to NAC by Bd. to Review Claims by R032-17, eff. 12-19-2017)

NAC 445C.330 Grants for purchase and installation of upgrades: Information to be provided by operator. (NRS 445C.310) An operator of one or more storage tanks is eligible to apply to the Division for a grant from the money made available pursuant to NAC 445C.320 if the operator provides information to demonstrate:

1. That the applicable storage tanks are registered storage tanks and the applicant is the operator, pursuant to NRS 445C.250, who registered the storage tanks.

2. That the operator is a small business as described in NAC 445C.210.

3. That the operator independently operates and owns or leases the petroleum dispensing location where the applicable storage tanks are installed and operated.

4. Except as otherwise provided in this subsection, that all storage tanks operated by the operator in this State are operated in compliance with the provisions of NAC 459.9921 to 459.999, inclusive. The Administrator of the Division may grant a waiver from the requirements of this subsection if the Administrator determines that the purchase and installation of the anticipated upgrades to the storage tanks which are the subject of the application will result in the operator’s compliance with the provisions of this subsection.

(Added to NAC by Bd. to Review Claims by R032-17, eff. 12-19-2017; A by R049-21, 4-11-2022)

NAC 445C.340 Grants for purchase and installation of upgrades: Application requirements; confidentiality of certain records. (NRS 445C.310)

1. An eligible operator who wishes to apply for a grant of money made available pursuant to NAC 445C.320 must submit to the Division, on or after July 1 but before April 1 of the fiscal year, a complete grant application which must include, but is not limited to, the following information:

(a) The number of storage tanks for which upgrades are needed;

(b) A description of the necessity for the upgrades;

(d) If applicable, at least one cost estimate for the purchase and installation of the upgrades prepared by a handler of underground storage tanks, as defined in NAC 459.9705;

(e) The information required pursuant to subsections 1, 2, 4 and 5 of NAC 445C.220;

(f) Verification that the applicable storage tanks are available for public use;

(g) A list of all other operating storage tanks owned or operated by the grant applicant in other locations;

(h) The total number of employees employed by the applicant at all petroleum dispensing locations owned or operated by the applicant;

(i) The volume of petroleum sold at the petroleum dispensing location annually during the 2 years immediately preceding the date of application;

(j) A list of all petroleum dispensing locations available for public use that are located not more than 15 miles from the applicable petroleum dispensing location; and

(k) Any other information which the Division determines is necessary to evaluate the eligibility of the applicant.

2. All records acquired by the Division relating to the earnings, revenue and other internal financial matters of any applicant are confidential and will not be revealed in whole or in part except:

(a) For the necessary administration of NAC 445C.320 to 445C.380, inclusive; or

(b) Upon the order of a court of competent jurisdiction.

(Added to NAC by Bd. to Review Claims by R032-17, eff. 12-19-2017; A by R049-21, 4-11-2022)

NAC 445C.350 Grants for purchase and installation of upgrades: Division to review applications, rank applicants, award grants, allocate available grant money; multiple grant allocations to single applicant. (NRS 445C.310)

1. The Division shall review the applications submitted pursuant to NAC 445C.340 to 445C.380, inclusive, and rank the eligible applications according to:

(a) The demonstrated financial need of the applicant. The greater the demonstrated financial need of the applicant, the higher the ranking which must be assigned to the application.

(b) The annual volume of petroleum dispensed at the applicable fuel dispensing location of the applicant during the 2 years immediately preceding the year in which the application is submitted. The less annual volume of petroleum dispensed, the higher the ranking which must be assigned to the application.

(c) The proximity to the applicant’s petroleum dispensing location of other petroleum dispensing locations available for public use. The more remote the applicant’s petroleum dispensing location, the higher the ranking which must be assigned to the application.

2. The Division shall annually allocate the available grant money, beginning with the highest ranked applicant, until there is no more grant money available for that year. An applicant that is otherwise eligible to receive grant money but is not ranked high enough to receive money during any particular year may submit a new application during a subsequent application period.

3. Except as otherwise provided in subsections 4 and 5, a grant awarded to an applicant for upgrades will be paid by the Division pursuant to a cost schedule that is approved by the Board.

4. Except as otherwise provided in subsection 5, the total amount of a grant awarded to an applicant for upgrades to a petroleum dispensing location must not exceed $90,000.

5. An applicant with two or more petroleum dispensing locations may apply for a grant for one or more petroleum dispensing locations. Allocations that are approved for each location must comply with subsections 3 and 4, except that the total amount paid to a single applicant must not exceed $180,000.

6. An applicant may receive multiple grant allocations for each petroleum dispensing location, not to exceed the amounts set forth in subsections 4 and 5, as applicable. An applicant shall submit a separate application for each allocation and such applications must be submitted pursuant to NAC 445C.340 to 445C.380, inclusive.

(Added to NAC by Bd. to Review Claims by R032-17, eff. 12-19-2017; A by R049-21, 4-11-2022)

NAC 445C.360 Grants for purchase and installation of upgrades: Requirements for recipient and Division; retention of records. (NRS 445C.310)

1. A recipient shall only purchase and install equipment for upgrades that is approved by the Division. Equipment that is financed in whole or in part by grant money must comply with 40 C.F.R. § 280.20 and must meet the compatibility standards set forth in 40 C.F.R. § 280.32.

2. The Division shall:

(a) Inspect and approve the completed installation of the upgrades; or

(b) In lieu of inspecting and approving the completed installation of the upgrades as described in paragraph (a), authorize the recipient to submit to the Division materials that demonstrate that the purchase and installation of the upgrades complies with the requirements of NAC 445C.320 to 445C.380, inclusive.

3. A recipient shall submit to the Division:

(a) All invoices related to the upgrades not later than 30 days after the installation of the upgrades is complete.

(b) Documentation of testing that occurred after the installation of the upgrades. Such testing must comply with the standards set forth in 40 C.F.R. § 280.35.

(c) Upon request, any other documents that the Division determines necessary to verify that the recipient has complied with the provisions of NAC 445C.320 to 445C.380, inclusive.

4. A recipient shall retain all records relating to the upgrades financed in whole or in part by grant money for at least 3 years after the date on which the installation of the upgrades is complete.

(Added to NAC by Bd. to Review Claims by R032-17, eff. 12-19-2017; A by R049-21, 4-11-2022)

NAC 445C.370 Grants for purchase and installation of upgrades: Recipient to make certain records available for audit and inspection by the Division. (NRS 445C.310) A recipient shall make available at any reasonable time for audit and inspection by any authorized representative of the Division all records related to the use of grant money for the purchase and installation of upgrades.

(Added to NAC by Bd. to Review Claims by R032-17, eff. 12-19-2017)

NAC 445C.380 Grants for purchase and installation of upgrades: Authorized uses of grant money; obligations of recipient to repay in certain circumstances. (NRS 445C.310)

1. Grant money allocated to a recipient pursuant to NAC 445C.320 to 445C.380, inclusive, must be used only for the purchase and installation of the upgrades authorized by the Division in its approval of the grant application.

2. If a recipient does not spend the total allocation of grant money on the authorized upgrades, the recipient shall repay to the Division the amount of any grant allocation which remains unspent not later than 60 days after the completion of the installation of the upgrade for which the grant money was awarded.

3. If a recipient spends any grant money for any purpose other than the purchase and installation of the upgrades authorized by the Division in its approval of the grant application, the recipient shall repay to the Division the amount of money spent on unauthorized costs not later than 30 days after the recipient receives notice from the Division of its determination that the grant money was spent on unauthorized costs.

4. All costs incurred by the Division which are associated with the recovery of grant money pursuant to this section may be charged by the Division to the recipient.

5. The Division shall deposit all money recovered pursuant to this section into the Fund.

6. If a recipient does not repay any unused or unauthorized expenditures of grant money to the Division in the manner required by this section, the Division may, in accordance with NAC 459.9942, mark the storage tanks at the petroleum dispensing location with a red tag until the date on which the recipient complies with the provisions of this section.

(Added to NAC by Bd. to Review Claims by R032-17, eff. 12-19-2017)

NAC 445C.390 Severability of provisions. (NRS 445C.310) If any provision of NAC 445C.200 to 445C.390, inclusive, or the application of the provision to any person, thing or circumstance is held invalid, it is intended that the invalidity not affect the remaining provisions, or their application, that can be given effect without the invalid provision or application.

(Added to NAC by Bd. to Review Claims, eff. 6-15-90)—(Substituted in revision for NAC 590.790)