Referred to Committee on Natural Resources, Agriculture, and Mining
SUMMARY--Provides for voluntary examination and disclosure of certain environmental requirements. (BDR 40-157)
FISCAL NOTE: Effect on Local Government: No.
Effect on the State or on Industrial Insurance: No.
EXPLANATION - Matter in italics is new; matter in brackets [ ] is material to be omitted.
AN ACT relating to environmental regulation; authorizing certain persons who own or operate certain facilities to make voluntary examinations and disclosures regarding certain environmental requirements; providing for a mitigation of criminal penalties and a presumption against administrative or civil liability if such an examination and disclosure is made; precluding the use of an environmental audit to commence certain proceedings and actions; and providing other matters properly relating thereto.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
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Section 1 Title 40 of NRS is hereby amended by adding thereto a new chapter to consist of the provisions set forth as sections 2 to 13, inclusive, of this act.
Sec. 2 As used in this chapter, unless the context otherwise requires, the words and terms defined in sections 3 to 7, inclusive, of this act have the meanings ascribed to them in those sections.
Sec. 3 "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.
Sec. 4 "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 459.856, inclusive, or 519A.010 to 519A.280, inclusive, or in a regulation adopted pursuant to any of those statutes.
Sec. 5 "Regulated facility" means an area, building, tank or other facility that is subject to an environmental requirement.
Sec. 6 "Regulated person" means the owner or operator of a regulated facility.
Sec. 7 "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.
Sec. 8 1. Except as otherwise provided in subsections 2 and 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, without limitation, 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 environmental requirement was not violated at the regulated facility in the immediately preceding 3 years;
(e) The regulated person did not receive significant economic gain as a result of the violation; and
(f) The regulated person entered into an enforceable agreement with the appropriate regulatory agency to comply with the environmental requirement.
2. The requirement that a court consider mitigating factors when determining the appropriate criminal penalty pursuant to subsection 1 does not apply to the violation of an environmental requirement for which mandatory disclosure is required.
3. If a federal statute or regulation requires 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.
Sec. 9 1. Except as otherwise provided in subsection 2 and section 10 of this act, 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, without limitation, 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 environmental requirement was not violated at the regulated facility in the immediately preceding 3 years; and
(d) The regulated person entered into an enforceable agreement with the appropriate regulatory agency to comply with the environmental requirement.
2. The presumption against administrative or civil liability does not apply to a violation of an environmental requirement for which mandatory disclosure is required.
3. If a federal statute or regulation requires 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.
Sec. 10 The presumption against administrative or civil liability set forth in section 9 of this act 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. Significant environmental harm or a significant adverse effect on public health resulted from the violation;
4. The environmental audit was conducted for a fraudulent purpose; or
5. The regulated person derived significant economic advantage from the violation.
Sec. 11 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 section 9 of this act.
2. A regulatory agency has the burden of rebutting the presumption against liability by a preponderance of the evidence.
Sec. 12 A person or entity, other than a regulatory agency, shall not use an environmental audit conducted by a regulated person to commence an administrative proceeding or a civil or criminal action against the regulated person or the regulated facility which is owned or operated by the regulated person.
Sec. 13 A regulatory agency may adopt regulations to carry out the provisions of sections 2 to 13, inclusive, of this act.
Sec. 14 NRS 444.583 is hereby amended to read as follows:
444.5831. Except as otherwise provided in subsection 5, it is unlawful willfully to:
(a) Dispose of, abandon or dump a motor vehicle battery, motor vehicle tire or motor oil at any site which has not been issued a permit for that purpose by the state department of conservation and natural resources;
(b) Dispose of, abandon or dump a motor vehicle battery, motor vehicle tire or motor oil at a sanitary landfill or other disposal site established by a municipality which has not been issued a permit for that purpose by the state department of conservation and natural resources; or
(c) Incinerate a motor vehicle battery or motor vehicle tire as a means of ultimate disposal, unless the incineration is approved by the department for the recovery of energy or other appropriate use.
2. A person who violates the provisions of subsection 1 is guilty of a misdemeanor and except as otherwise provided in sections 2 to 13, inclusive, of this act, shall be punished by a fine of not less than $100 per violation.
3. The department shall establish a plan for the appropriate disposal of used or waste motor vehicle batteries, motor vehicle tires and motor oil. The plan must include the issuance of permits to approved sites or facilities for the disposal of those items by the public. The plan may include coordination with the office of community service within the governor's office for the education of the public regarding the necessity of disposing of these items properly and recycling them.
4. The department shall encourage the voluntary establishment of authorized sites which are open to the public for the deposit of used or waste motor vehicle batteries, motor vehicle tires and motor oil.
5. The provisions of subsections 1 and 2 do not apply to the disposal of used or waste motor vehicle batteries or motor vehicle tires if the unavailability of a site that has been issued a permit by the state department of conservation and natural resources makes disposal at such a site impracticable. The provisions of this subsection do not exempt a person from any other regulation of the department concerning the disposal of used or waste motor vehicle batteries or motor vehicle tires.
Sec. 15 NRS 444.585 is hereby amended to read as follows:
444.5851. From the time recyclable materials are placed in a container provided by a private recycling business or the person designated by the county or other municipality to collect recyclable materials:
(a) At curbside for collection; or
(b) At any other appropriate site designated for collection,
the recyclable materials are the property of the private recycling business or person designated by the county or other municipality to collect them, as appropriate.
2. Any person engaged in the unauthorized collection of recyclable materials is guilty of a misdemeanor. Each such unauthorized collection constitutes a separate and distinct offense.
3. As an alternative to the criminal penalty set forth in subsection 2, the county or other municipality, the private recycling business and the person designated to collect the recyclable materials may independently enforce the provisions of this section in a civil action. [A] Except as otherwise provided in sections 2 to 13, inclusive, of this act, a person who engages in the unauthorized collection of recyclable materials is liable to the private recycling business or the person designated to make such collections, as appropriate, for three times the damages caused by the unauthorized collection.
Sec. 16 NRS 444.635 is hereby amended to read as follows:
444.6351. [Any] Except as otherwise provided in sections 2 to 13, inclusive, of this act, a person convicted of violating NRS 444.555 and, in addition to the penalty imposed in NRS 444.583 or 444.630, any person convicted of violating NRS 444.583 or 444.630 is liable for a civil penalty, upon each such conviction.
2. [Every court,] Except as otherwise provided in sections 2 to 13, inclusive, of this act, a court before whom a defendant is convicted of a violation of NRS 444.555, 444.583 or 444.630, shall order the defendant to pay a civil penalty which is at least $250 but not more than $2,000. If so provided by the court, the penalty may be paid in installments.
3. The health authority or division of environmental protection of the state department of conservation and natural resources may attempt to collect all such penalties and installments which are in default in any manner provided by law for the enforcement of a judgment.
4. Each court which receives money under the provisions of this section shall forthwith remit the money to the division of environmental protection or, if the health authority initiated the action, the district health department which shall deposit the money with the state treasurer for credit in a separate account in the state general fund or with the county treasurer for deposit in an account for the district health department, as the case may be. Money so deposited must be used only to pay rewards pursuant to NRS 444.640 or for the management of solid waste and paid as other claims against the state or local governments are paid.
Sec. 17 NRS 445A.700 is hereby amended to read as follows:
445A.700 1. [Any] Except as otherwise provided in sections 2 to 13, inclusive, of this act, a person who violates or aids or abets in the violation of any provision of NRS 445A.300 to 445A.730, inclusive, or of any permit, regulation, standard or final order issued thereunder, except a provision concerning a diffuse source, shall pay a civil penalty of not more than $25,000 for each day of the violation. The civil penalty imposed by this subsection is in addition to any other penalties provided pursuant to NRS 445A.300 to 445A.730, inclusive.
2. [In] Except as otherwise provided in sections 2 to 13, inclusive, of this act, in addition to the penalty provided in subsection 1, the department may recover from the person actual damages to the state resulting from the violation of NRS 445A.300 to 445A.730, inclusive, any regulation or standard adopted by the commission, or permit or final order issued by the department, except the violation of a provision concerning a diffuse source.
3. Damages may include:
(a) Any expenses incurred in removing, correcting and terminating any adverse effects resulting from a discharge or the injection of contaminants through a well; and
(b) Compensation for any loss or destruction of wildlife, fish or aquatic life.
Sec. 18 NRS 445B.640 is hereby amended to read as follows:
445B.6401. Except as otherwise provided in subsection 4 [,] and sections 2 to 13, inclusive, of this act, any person who violates any provision of NRS 445B.100 to 445B.450, inclusive, and 445B.470 to 445B.640, inclusive, or any regulation in force pursuant thereto, other than NRS 445B.570 on confidential information, is guilty of a civil offense and shall pay an administrative fine levied by the commission of not more than $10,000 per day per offense. Each day of violation constitutes a separate offense.
2. The commission shall by regulation establish a schedule of administrative fines not exceeding $500 for lesser violations of any provision of NRS 445B.100 to 445B.450, inclusive, and 445B.470 to 445B.640, inclusive, or any regulation in force pursuant thereto.
3. Action pursuant to subsection 1 or 2 is not a bar to enforcement of the provisions of NRS 445B.100 to 445B.450, inclusive, and 445B.470 to 445B.640, inclusive, regulations in force pursuant thereto, and orders made pursuant to NRS 445B.100 to 445B.450, inclusive, and 445B.470 to 445B.640, inclusive, by injunction or other appropriate remedy, and the commission or the director may institute and maintain in the name of the State of Nevada any such enforcement proceedings.
4. Any person who fails to pay a fine levied pursuant to subsection 1 or 2 within 30 days after the fine is imposed is guilty of a misdemeanor. The provisions of this subsection do not apply to persons found by the court to be indigent.
5. All administrative fines collected by the commission pursuant to this section must be deposited in the county school district fund of the county where the violation occurred.
Sec. 19 NRS 459.3872 is hereby amended to read as follows:
459.38721. If any person violates any of the provisions of NRS 459.380 to 459.386, inclusive, or 459.387, or any regulation or order adopted or issued pursuant thereto, the division may institute a civil action in a court of competent jurisdiction for injunctive or any other appropriate relief to prohibit and prevent the violation and the court may proceed in the action in a summary manner.
2. [Any] Except as otherwise provided in sections 2 to 13, inclusive, of this act, a person who violates a provision of NRS 459.380 to 459.386, inclusive, or 459.387, or any regulation or order adopted pursuant thereto is liable to a civil administrative penalty as set forth in NRS 459.3874. If the violation is of a continuing nature, each day during which it continues constitutes an additional, separate and distinct offense. No civil administrative penalty may be levied until after notification to the violator by certified mail or personal service. The notice must include a reference to the section of the statute, regulation, order or condition of a permit violated, a concise statement of the facts alleged to constitute the violation, a statement of the amount of the civil penalties to be imposed, and a statement of the violator's right to a hearing. The violator has 20 days after receipt of the notice within which to deliver to the division a written request for a hearing. After the hearing if requested, and upon a finding that a violation has occurred, the administrator of the division may issue a final order after assessing the amount of the fine specified in the notice. If no hearing is requested, the notice becomes a final order upon the expiration of the 20-day period. Payment of the penalty is due when a final order is issued or when the notice becomes a final order. The authority to levy a civil administrative penalty is in addition to all other provisions for enforcement of NRS 459.380 to 459.387, inclusive, and the payment of a civil administrative penalty does not affect the availability of any other provision for enforcement in connection with the violation for which the penalty is levied.
Sec. 20 NRS 519A.280 is hereby amended to read as follows:
519A.2801. [A] Except as otherwise provided in sections 2 to 13, inclusive, of this act, a person who violates any provision of NRS 519A.010 to 519A.280, inclusive, or any regulation adopted by the commission pursuant to NRS 519A.160, is guilty of a misdemeanor and, in addition to any criminal penalty, is subject to a civil penalty imposed by the division at a hearing for which notice has been given, in an amount determined pursuant to the schedule adopted by the commission pursuant to NRS 519A.160.
2. Any money received by the division pursuant to subsection 1 must be deposited in the state general fund.