2005 Nevada Revised Statutes - Chapter 445C — Environmental Requirements

CHAPTER 445C - ENVIRONMENTAL REQUIREMENTS

NRS 445C.010 Definitions.

NRS 445C.020 Environmentalaudit defined.

NRS 445C.030 Environmentalrequirement defined.

NRS 445C.040 Regulatedfacility defined.

NRS 445C.050 Regulatedperson defined.

NRS 445C.060 Regulatoryagency defined.

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

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

NRS 445C.090 Rebuttalof presumption that regulated person is not liable for administrative or civilpenalty for violation.

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

NRS 445C.110 Environmentalaudit: Privileged; exceptions.

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

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NRS 445C.010 Definitions. As used in this chapter, unless the context otherwiserequires, the words and terms defined in NRS445C.020 to 445C.060, inclusive,have the meanings ascribed to them in those sections.

(Added to NRS by 1997, 1074)

NRS 445C.020 Environmentalaudit defined. Environmental audit means anexamination of the materials or practices at a regulated facility that is conductedby a regulated person or an agent of a regulated person and that isspecifically designed to:

1. Produce systematic, documented and objectiveresults;

2. Identify and prevent noncompliance with anyenvironmental requirement; and

3. Improve compliance with such a requirement.

(Added to NRS by 1997, 1074)

NRS 445C.030 Environmentalrequirement defined. Environmentalrequirement means a requirement contained in NRS444.440 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 regulationadopted pursuant to any of those statutes.

(Added to NRS by 1997, 1074)

NRS 445C.040 Regulatedfacility defined. Regulated facility meansan area, building, tank or other facility that is subject to an environmentalrequirement.

(Added to NRS by 1997, 1074)

NRS 445C.050 Regulatedperson defined. Regulated person means theowner or operator of a regulated facility.

(Added to NRS by 1997, 1075)

NRS 445C.060 Regulatoryagency defined. Regulatory agency means:

1. The State Environmental Commission;

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

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

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

(Added to NRS by 1997, 1075)

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

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

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

(1) Scope, methods and schedule for conductingthe audit;

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

(3) Period within which such a violation must becorrected;

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

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

(1) The occurrence of any inspection orinvestigation of the regulated facility by a regulatory agency or othergovernmental entity; or

(2) The commencement of an administrativeproceeding or a civil or criminal action against the regulated person for theviolation;

(d) The regulated person or regulated facility has notbeen issued a citation for a violation of the environmental requirement in theimmediately preceding 3 years;

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

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

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

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

(3) Take action to prevent a recurrence of theviolation.

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

3. If a federal statute or regulation provides for theimposition of a specific penalty for a violation of an environmentalrequirement, a voluntary disclosure that complies with the provisions ofsubsection 1 is, to the extent permitted under that statute or regulation, amitigating factor to be considered by the court when determining the penaltyfor the violation.

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

(Added to NRS by 1997, 1075)

NRS 445C.080 Presumptionthat regulated person is not liable for administrative or civil penalty forviolation; 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 presumednot to be liable for an administrative or civil penalty for a violation of an environmentalrequirement if:

(a) The regulated person conducted an environmentalaudit pursuant to a written agreement with the appropriate regulatory agencyand the agreement prescribed the:

(1) Scope, methods and schedule for conductingthe audit; and

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

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

(c) The regulated person or regulated facility has notbeen issued a citation for a violation of the environmental requirement in theimmediately preceding 3 years;

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

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

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

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

(e) The environmental requirement that was violated isnot a requirement for which the regulated person or regulatory facility wasspecifically required to comply pursuant to a judicial or administrative orderor consent agreement.

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

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

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

(Added to NRS by 1997, 1076)

NRS 445C.090 Rebuttalof presumption that regulated person is not liable for administrative or civilpenalty for violation. The presumption againstadministrative or civil liability set forth in NRS 445C.080 is rebutted to the extent itis established that:

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

2. The regulated person identified and disclosed theviolation of an environmental requirement in an environmental audit after thecommencement of:

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

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

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

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

4. The environmental audit was conducted for afraudulent purpose;

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

6. The regulated person conducted a previousenvironmental audit that disclosed the violation and he intentionally failed toreport that violation to the appropriate regulatory agency.

(Added to NRS by 1997, 1077)

NRS 445C.100 Administrativeor civil proceedings for violation: Burdens of proof. Inan administrative or civil proceeding for a violation of an environmentalrequirement:

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

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

(Added to NRS by 1997, 1077)

NRS 445C.110 Environmentalaudit: Privileged; exceptions.

1. Except as otherwise provided in this section, anenvironmental audit conducted pursuant to the provisions of this chapter shallbe deemed privileged and is not admissible in an administrative proceeding orcivil action against the regulated person who conducted the audit or theregulated facility which is owned or operated by the regulated person.

2. The privilege provided by subsection 1 does notapply if:

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

(b) The regulated person expressly waives theprivilege; or

(c) A court or administrative hearing officerdetermines in camera that the presumption against administrative or civilliability is rebutted pursuant to NRS445C.090.

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

4. This section does not prohibit a person orentity from:

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

(b) Commencing an administrative proceeding or civil orcriminal action against a regulated person or a regulated facility which isowned or operated by a regulated person based upon information that wasobtained from a source independent of an environmental audit.

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

(Added to NRS by 1997, 1077)

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

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

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

(Added to NRS by 1997, 1078)

 

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