[Rev. 11/21/2013 11:44:57 AM--2013]

CHAPTER 445C - 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.

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      NRS 445C.010  Definitions.  As used in this chapter, 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)

      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 this chapter 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)

      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)