MINUTES OF MEETING

      ASSEMBLY COMMITTEE ON NATURAL RESOURCES, AGRICULTURE AND MINING

 

      Sixty-seventh Session

      January 27, 1993

 

 

 

The Assembly Committee on Natural Resources, Agriculture and Mining was called to order by Chairman Vivian L. Freeman at 1:15 p.m., January 27, 1993, in Room 321 of the Legislative Building, Carson City, Nevada.  Exhibit A is the Meeting Agenda, Exhibit B is the Attendance Roster.

 

 

COMMITTEE MEMBERS PRESENT:

 

      Mrs. Vivian L. Freeman, Chairman

      Mr. John B. Regan, Vice Chairman

      Mr. Douglas A. Bache

      Mr. John C. Carpenter

      Ms. Marcia de Braga

      Mr. Peter G. Ernaut

      Mr. James A. Gibbons

      Mr. Roy Neighbors

      Mr. Robert M. Sader

      Mr. Michael A. Schneider

      Ms. Stephanie Smith

 

 

COMMITTEE MEMBERS ABSENT:

 

      None

 

GUEST LEGISLATORS PRESENT:

 

      None

 

STAFF MEMBERS PRESENT:

 

      Fred Welden, Chief Deputy Research Director

      Denice Miller, Senior Research Analysts

 

OTHERS PRESENT:

 

      Ray Bacon, Nevada Manufactures Association; Kathy Esparza, Nevada Emergency Management; Larry Hawke, Nevada Mining Association; Richard Reavis, Nevada Department Environmental Protection; Donna Lewis, Division of Enforcement for Industrial Safety and Health; Carol Jackson, Department Industrial Relations; David Going,  Division of Enforcement for Industrial Safety and Health; Darrell Rasner, Health Division; Lew Dodgion, Nevada Department Environmental Protection; Larry Farr, Reno Fire Department; Larry Blalock, Sierra Pacific Power Co; Laura Hicks, Sierra Chemical; Marty Scheuerman, Truckee Meadows Fire Department; George McNally, Nevada Trial Lawyers; Joe Johnson, Sierra Club; Carole Vilardo, Nevada Taxpayers Association; Gaylyn Spriggs, Rayrock Mines; Bob Andrews, Safety Emergency Response Committee; Ray Blehm, State Fire Marshal.

 

Chairman Freeman called the meeting to order at 1:15 p.m. and roll call was taken. 

 

ASSEMBLY BILL 115:

 

      Protects certain persons and organizations from liability for damages in regulating and removing hazardous materials.

 

Denice Miller, Senior Research Analyst, and principal staff to the Assembly Concurrent Resolution 79 of the Sixty sixth session interim study on hazardous materials, said as staff she would not be speaking in favor of in opposition of any of the bills discussed, but would be reviewing the concerns the A.C.R 79 sub- committee considered in making its final recommendations.  She stated A.B. 115 occurred out of discussions on liability.  Public utilities, chemical manufacturers and users or transporters of chemicals often became expertise in the handling of hazardous materials.  Testimony indicated the organizations were hesitant to provide assistance during an emergency because of the lack of a comprehensive liability statute.  Testimony from representatives of the Nevada Manufacturers Association and other businesses prompted the subcommittee to adopt the recommendation for this type of statute.

 

Chairman Freeman asked for proponents of A.B. 115 to testify.

 

Gaylyn Spriggs representing Rayrock Mines testified in favor of A.B. 115.  She told the committee of her participation on the A.C.R. 79 subcommittee and her request for the bill.  In rural areas mining companies or public utilities would usually be the only ones with expertise in hazardous materials emergencies, medical or chemical spills.  Ms. Spriggs noted by having a comprehensive liability statute the expertise of the companies could be used. Mrs. Spriggs stated on page 2, lines 28-30 of A.B. 115 should be left out of the bill.  If an emergency existed, it would be impossible to sign a written agreement in the field before responding to the emergency. 

 

Mr. Regan concurred with Ms. Spriggs explanation of lines 28-30, page 2, but asked if the lines in question might not refer to a previous condition of agreement, an agreement of liability in which a mining company or public utility would agree to respond to a hazardous materials emergency.

 

A.B. 115 would be rereferred to the Judiciary Committee commented Chairman Freeman.

 

Mr. Ray Bacon, Executive Director, Nevada Manufacturers Association, said his association was the primary force behind A.B. 115.  He believed the bill would be important to the rural communities as other entities with expertise in hazardous waste would not move on an emergency without some kind of liability   protection.  The remarks made by Ms. Spriggs were seconded by Mr. Bacon.

 

Larry Hawke, Legislative Affairs Director, Nevada Mining Association, spoke in favor of the legislation with the exception of two areas.  One area would be the written agreement mentioned  by Gaylyn Spriggs and the other point which needed clarifying would be on page 2, line 10 the term "trained."  Three things needed to occur for a person to have immunity under this legislation.  A request must be made by a specified entity or persons, by written agreement, and the person must be trained in the handling of hazardous materials.  The definition of "trained" and what it encompasses regarding statute needs to be spelled out.

                            

Mr. Carpenter asked Mr. Hawke what he would suggest as a definition.  Mr. Hawke said those who do the training or certification would be able to set guidelines.

 

Chairman Freeman advised the committee several bills would be heard on the issue of training.   

 

Stan Warren representing Sierra Pacific introduced Larry Blalock, Supervisor, Hazardous Materials Program.  Mr. Blalock said Sierra Pacific recommended removing or amending page 2, lines 28-30 of A.B. 115.  Mr. Blalock voiced many of the same concerns regarding a written agreement.  Sierra Pacific did support A.B. 115  with the exception as stated. 

 

Mr. Regan questioned Mr. Blalock regarding training requirements. Mr. Blalock mentioned the many areas of training Sierra Pacific employees receive.  The one area required for all employees was the first responder training.  Mr. Regan asked Mr. Blalock if first response training would be used as a criteria for the word "trained," how would the term be perceived.  Mr. Blalock explained persons trained as first responders would have a general-across-the-board knowledge.  First responders would cordon off the area and do  many jobs except cleaning up a spill. 

 

Ray Blehm, Nevada State Fire Marshall, supported A.B. 115. 

 

Mr. Sader asked Mr. Blehm to identify the criteria which could be used for the word "trained."  Mr. Blehm said normally the wording would be trained to a level appropriate to the response, or trained to a level appropriate to the hazardous material being dealt with.  Wording which would show training was for a specific type of thing.  Mr. Sader said if he was defending someone and had to prove he was trained, he would have trouble defending his training with the language identified. Mr. Blehm identified many areas of certification.  Mr. Sader would like to see a standard set which would allow a person to know he was covered if involved in a response.

 

Mr. David Going, Director, Division of Enforcement For Industrial Safety and Health, talked about the various levels of training and criteria. 

 

Ms. Smith asked why untrained people were segregated from trained people regarding immunity.  She said subsection 2, line 12 specified who could respond, and she could not see any need for subsection 1, lines 10-11.  Mr. Going agreed with her but indicated he was not the author of the bill.  Mr. Going stated it was not an issue which needed to be addressed.

 

Mr. Carpenter agreed with Ms. Smith and doubted the rural counties would find trained individuals to respond.  He felt  the committee needed to get back to the intent of the bill.

 

Ray Blehm said the comments were appropriate and if the language were taken out of the bill the requirements for training would still be there.

 

Chairman Freeman asked Kathy Esparza, Nevada Emergency Management, to report on A.B. 115.  Ms. Esparza agreed with Ms. Smith and Mr. Blehm.  The word "trained" in the bill would not make a difference as far as immunity.  Training requirements on both the federal and state level would still be required.

 

Mr. Sader explained the good samaritan statute applied to someone trained or untrained helping at the scene of an accident.  Mr. Sader questioned what A.B. 115 would do which the good samaritan statute would not do. 

 

Mr. Gibbons stated Nevada Revised Statutes, Chapter 459 also would have criminal liability and did not know if the good samaritan statute would preclude liability. 

 

Mr. Blehm gave examples of why A.B. 115 was structured as written even though there might be problems the way the bill was worded.

 

Lew Dodgion, Administrator, Division Environmental Protection, said he could not add anything to what already had been said.

 

Mr. Carpenter reiterated his feelings regarding the word "trained" on page 2, line 10 of A.B. 115.  He believed the line should be left out. 

 

Bob Andrews, Executive Director, Emergency Response Commission, which had been heavily involved in the A.C.R. 79 Interim Study,  explained the Local Emergency Planning Commissions of the seventeen counties felt very strongly liability was needed. One reason was the private sector would have a great deal of expertise on hazardous materials and capabilities, and they would like the private sector to be helpful off site in supporting public safety responders.

 

Ms. Smith asked if lines 10-11 and 28-30 of page 2 could be left out of A.B. 115.  Mrs. Freeman pointed out the bill would be referred to  the Judiciary Committee.

 

Chairman Freeman asked for speakers in opposition to A.B. 115.

 

Mr. George McNally, President, Nevada Trial Lawyers Association, commented on the good samaritan statute and indicated there would be a bill draft dealing with this particular issue.  He stated the Bill Draft Number was 3-1420.  Mr. McNally read the content of the BDR.  The summary limits liability of volunteers who respond to accidents involving hazardous materials. Mr. McNally referred to the sections on liability in A.B. 115 and hoped the immunity provisions would be dealt with accurately.

 

Mr. Sader gave an example of a case regarding negligence.  The difference between negligence and gross negligence was discussed with Mr. McNally.  Mr. Sader said there were statutes in NRS where immunity would be given for ordinary negligence but not for gross negligence. 

 

A good deal of discussion took place regarding immunity.  Mr. Sader asked if the committee would be limiting immunity by passing a specific statute dealing with hazardous material emergencies which would be less comprehensive in the provisions than the good samaritan statute. 

 

Denice Miller said Gaylyn Spriggs believed an Attorney General's opinion stated there was a need for this particular liability statute. 

 

Ms. Spriggs said during the A.C.R 79 Committee Hearing the testimony indicated there was an Attorney General's opinion which stated private and public entities could not respond with out liability and would not be covered by the good samaritan statute.

 

Denice Miller offered to find a copy of the AG's opinion referred to by Ms. Spriggs.    

 

Ms. Smith and Mr. Sader discussed the difference of immunity of an individual or a company.  Mr. Sader said the testimony related to the application of the law to private industry which has expertise and need coverage.  However, it appears the statute would cover everyone who would come to an emergency as a responder.   

 

More discussion ensued with Marty Scheuerman of the Truckee Meadows Fire Department stating he thought the liability intent was meant for private industry to come to the assistance of public agencies who deal with hazardous materials incidents. 

 

Chairman Freeman closed the hearing on A.B. 115 and opened the hearing on A.B. 119.

 

ASSEMBLY BILL 119:

 

      Provides that person may offer free consultation to public agency regarding incidents involving hazardous materials without certification.

 

Denice Miller gave a brief outline of the bill.  She stated the issue in A.B. 119 came before the interim study during the October meeting.  A representative from Sierra Pacific testified regarding existing legislation and the administrative code developed with this legislation. Legislation precluded them from giving free advice to public agencies without being certified according to the Nevada Administrative Code and requirements.  Legal Counsel was asked if Sierra Pacific Power would have to be certified as environmental consultants in order to provide free assistance.  Legal counsel replied to the subcommittee it was his opinion Sierra Pacific would have to be certified. Verne Rosse at the January meeting said the Attorney General had concurred with the opinion of legal counsel.  Members of the subcommittee sent a letter to the Environmental Commission requesting them to clarify if the regulations did not apply to entities like Sierra Pacific.  An opinion from the Environmental Commission agreed with the subcommittee and Sierra Pacific did not need to be certified.   After discussion with legal counsel and since the regulations had been subject to various interpretations, the committee decided to clarify in statute certain entities were not subject to being certified according to the law. 

 

Mr. Gibbons asked Ms. Miller to reconcile the difference between A.B. 115 and A.B. 119. Ms. Miller explained A.B. 119 provides a person is exempt from the requirements of certification for the purpose of offering free consultation and A.B. 115 furnishes immunity for advice or assistance in the handling of hazardous materials.  Ms. Miller said A.B. 115 addressed technical assistance, equipment and trained personnel responding to an emergency, whereas A.B. 119 refers to a consultant called in to look at a hazardous materials situation where the consultant might be offering advice but not equipment or a response.  Mr. Gibbons felt the two issues were synonymous.

 

Mr. Ray Bacon, Nevada Manufacturers Association supported A.B. 119 as written.

 

Mr. Stan Warren representing Sierra Pacific advised the committee they did not ask for the legislation but did support it.  Larry Blalock, Sierra Pacific Power Company supported A.B. 119 as far as the legislation went. Sierra Pacific would like to have the legislation include customers incidental to providing utility service.  The legislation as it reads now would not allow Sierra Pacific to give advice to customers other than as an agency of the state or a political subdivision of the state.

 

Larry Hawke, Nevada Mining Association, supported the legislation.

 

Chairman Freeman asked for opponents of the bill.

 

Lew Dodgion, Administrator, Department of Environmental Protection, responded to Mr. Blalock's comments as opposing the legislation.  He said the bill as drafted would be fine but a petition from Sierra Pacific to the Environmental Commission to amend the regulation would take care of their needs without addressing state statutes.

 

Fred Welden, Chief Deputy Research Director, asked Mr. Dodgion if the bill was necessary if they came to the commission regarding the amendment proposed relative to customers.  The enabling legislation would be broad enough for the commission to do exactly what lines 17 through 19 of Section 1 of A.B. 119, said Mr. Dodgion.  The Environmental Commission could amend the regulation and clarify it without A.B. 119.  

 

Mr. Gibbons asked Mr. Dodgion to interpret the language in A.B. 119 versus the Attorney General's opinion which said this language would be needed. The regulation in question was adopted by the State Environmental Commission, said Mr. Dodgion. The statute provides for the issuance of advisory opinions by the bodies which adopt regulations.  The Environmental Commission's enabling statutory language would be broad enough and could be clarified further to provide the flexibility which Sierra Pacific requests.  The Environmental Commission does not have a problem with Sierra Pacific as they have been the experts in transformers. 

 

Stan Warren representing Sierra Pacific had no objection to the committee adopting Mr. Dodgion's  advice and the Environmental Commission amending the regulations.

 

Mr. Ernaut asked if lines 17-21, page 2 of A.B. 119 would be affected by the Governor's reorganization plan.  Ms. Miller offered to research the issue.

 

The hearing on A.B. 119 was closed and the hearing on A.B. 128 was open for testimony.

 

ASSEMBLY BILL 128:

 

      Authorizes representative of local emergency planning committee to enter certain facilities if necessary to carry out duties of committee.

 

Denice Miller referred to the Local Emergency Planning Committee and public law 99-499 otherwise known as the Superfund Amendments and Reauthorization Act of 1986 (SARA) which required each of the states to establish a state emergency response commission.  The commission was responsible for designating local emergency planning districts.  The local emergency planning districts were required to have planning committees. 

 

Mr. Gibbons asked Ms. Miller what the penalty would be for not allowing a representative of the local emergency planning committee to enter a facility.  She did not know of any law which would directly state facilities could not refuse entry to a member of the local emergency commission.  Mr. Gibbons asked what the enforcement would be if the bill were passed.  Ms. Miller stated penalties were not set out in the bill. 

 

Kathy Esparza, SARA Title III Program Officer for Emergency Management, noted the intent of the bill was good.  Most businesses and industry have been open to LEPC members in a timely manner.  Ms. Smith asked if businesses would have to open up as if the LEPC had a warrant.  Ms. Esparza was concerned about putting the LEPC in a policing type of mode instead of being a regulatory committee. 

 

Mr. Carpenter said he felt the bill was very broad and could lead to harassment unless there were safeguards in other portions of the statute.  Ms. Esparza felt the companies might have trade information they did not want other people to observe. She said the LEPC had a great deal of responsibility and this would add one more burden to what they needed to be looking at.

 

Bob Andrews, Executive Director, State Emergency Response Commission has no position on A.B. 128.  The fire chief legally had the authority in every jurisdiction to enter facilities.

 

Larry Hawke, Nevada Mining Association, had no objection to the bill.  In respect to the language in line 12, Section 1 of A.B. 128, he suggested striking the and, and inserting or, and including designee also.

 

Mrs. Freeman asked for anyone who wished to speak in opposition of A.B. 128.

 

Larry Farr, Fire Marshall, City of Reno Fire Department, spoke in opposition to A.B. 128 because it would present another layer of government and inspection to facilities which already  undergo a number of inspections.  He explained LEPC would be the local emergency planning committee, not a regulatory committee, and would not have authority to enforce laws, regulations, codes and standards which were adopted.  LEPC could point out a problem to the local regulatory agency. 

 

Chairman closed the hearing on A.B. 128 and opened the hearing on A.B. 129.

 

 

ASSEMBLY BILL 129:

 

      Requires allowance of reasonable time to correct first violation of state regulation regarding hazardous material before imposition of administrative fine or civil penalty.

 

Denice Miller gave a brief background of A.B. 129.  She said the regulation originated in a letter from Carole Vilardo of the Nevada Taxpayers Association to the members of the subcommittee.  Ms. Vilardo pointed out several of her businesses had complained they were unfamiliar with regulations and were faced with a penalty or fine before they were able to correct a particular violation.  The subcommittee recommended before a civil penalty or fine could be imposed a reasonable time be allowed for the business to correct the violation.

 

Mr. Gibbons asked Ms. Miller if she had a definition of reasonable time.  She indicated she did not have a definition and the subcommittee did not discuss what reasonable time would be.  Mr. Gibbons  questioned lines 19-26, page 6 of A.B. 129.  He asked Ms. Miller to discuss with the committee, "under what situations where the federal regulations or receipt of federal money is a condition precedent to the state imposing these laws, when would it take effect and when would we be able to rely on the embargo of any civil penalty in this regard."  Ms. Miller stated when the recommendation was originally considered the particular phrase referred to was not in the recommendation.  The bill was amended during the work session on the recommendation of The Division for Enforcement for Industrial Safety or Health.  Ms. Miller referred the question to members from DEISH who could refer to a specific situation which caused their concern. Mr. Gibbons asked to have the phrase clarified before someone relied on the language.  Ms. Miller asked if Mr. Gibbons would like something in writing at a later date or if he would like to hear from someone from the Department of Industrial Relations. 

 

Chairman Freeman called on Carole Vilardo representing Nevada Taxpayers Association.  She indicated the language could be changed if needed.  Ms. Vilardo explained many federal regulations concerning the Hazardous Materials Act were being written with language small firms such as dry cleaners and laundries did not understand.  The association had tried to indicate in the language if there was a willful intent they should not be excused from a fine.  The fines in the bill amount to a great deal of money for a small business.  If a small business such as a quick copy center were told what it needed to do with its hazardous materials such as ink, the business would make the attempt to clean it up.  A time frame could not be used as a standard because some businesses might have to order equipment which would take longer to clean up the hazard. Ms. Vilardo stated the idea was to contact those people who were not willfully ignoring the law because they did not consider themselves in hazardous businesses, but were being caught in these laws.  The need would be to give them a time frame, and if they did not comply, then fine them. 

 

Mr. Ernaut asked if the language should be included if the small businesses were given better information to comply.  Ms. Vilardo stated a great deal of information was going out at this time.  She felt the thresholds being established would help and the fines would still be there if businesses did not comply. 

 

Laura Hicks, Director of Environmental Affairs, Corporate Safety, Regulatory Compliance of Sierra Chemical Company of Sparks spoke in favor of A.B. 129. She noted when Sierra Chemical Company had problems, it acted in a timely manner to correct them.  The time frames were set by the regulatory agency and Sierra Chemical would like to have the time frames left in the hands of the agencies.  Even though Sierra Chemical complied a civil fine or penalty was given.  The regulations have been difficult to keep up with, stated Ms. Hicks. 

 

Mr. Carpenter asked about the severity of the fines. Ms. Hicks said they had one fine which was reduced from $32,500 to $5,000 and another fine for $10,500.  No one was hurt in either incident. The $10,500 fine was appealed and turned down.

 

Mrs. Freeman called for those in opposition to A.B. 129. 

 

Carol Jackson, Director , Department of Industrial Relations, stated the Department opposed the changes in Sections 16-19 of A.B. 129 and read from prepared testimony, (Exhibit C).

 

Mr. Carpenter asked Ms. Jackson if DEISH was already complying what was the matter with the change in the statute. 

 

Donna Lewis, Director of DEISH, stated education and notices were important. Products bought by a company received a material safety data sheet which noted the danger and the product contents to educate its employees. The product would also contain a warning.

 

Mr. Gibbons asked when the application of the language in A.B. 129 would be effective if a chemical spill occurred.  Ms. Lewis referred to the Pepcon disaster in Las Vegas and said in the future DEISH must be in the command center during a disaster so employees would be protected from the first response.  Mr. Gibbons asked if the language in A.B. 129 passed, what would be the penalty to the State of Nevada.  Ms. Lewis said in an extreme case the federal government would pull the state plan and only federal enforcement would be allowed. She spoke about federal regulations and what was expected by the federal government of the state plan. 

 

Mr. Carpenter asked Ms. Lewis about DEISH's penalty schedule.  She stated it started at $7,000 but with a small employer in theory the penalty could be 85 percent of the $7,000.  Charts would be followed with different formulas adjusted to the penalty.  Ms. Lewis explained what was expected of DEISH by the federal government and what would be expected of those states which did not have a state plan.

 

Mr. Bache asked if Sections 16-19 were amended out of the bill would DEISH's problem with A.B. 129 be eliminated.  Ms. Lewis replied it would take care of the problem with the bill.

 

Lew Dodgion, Administrator, Environmental Protection, did not argue with Ms. Vilardo's feeling for the small business violations.  Mr. Dodgion stated a hazardous waste hauler could come into the state of Nevada and dump a truckload or trainload of hazardous waste down a well or into waters and he would not be fined as indicated in the first page of the bill.  Environmental Protection must have the ability to assess penalties stated in the federal acts.  Mr. Dodgion related the appeal process to the committee.  Education would be the most important step in running a regulatory program, stated Mr. Dodgion.  NDEP contracted with the Small Business Development Center at the University of Nevada Reno, funded through the Hazardous Waste Management Program, to educate and train businesses in the regulations of the hazardous waste management programs.  An 800 number where information could be utilized has been available . 

 

Mr. Darrell Rasner, Chief Bureau of Health Protection Services, Nevada Division of Health, spoke of serious concerns about several sections of A.B. 129 (Exhibit D).

 

Mr. Carpenter felt much of the legislation could destroy a person or business with high fines.  Mr. Dodgion offered an alternative.  He said none of the regulatory agencies in the state were going to fine people for minor violations on a first offense for new programs they did understand.  Serious violations could jeopardize the health and welfare of many people.   He said in the preamble to the statutes where legislative intent would be declared a statement could be included which might read, "administering authority would conduct educational programs with the onset on new regulations and provide training to the regulated community."  Mrs. Freeman suggested Mr. Dodgion and Ms. Vilardo meet and develop a suggestion by Monday.

 

Carol Jackson said workshops were available by the Preventive Safety Department which has done consultation for the enforcement division of Safety and Health. They will go to any employer to ascertain the hazards and  what needs to be corrected. There would not be citations involved and the consultation would be free.

 

Mrs. Freeman asked if there were any workshops statewide to help small businesses.  Mr. Dodgion spoke of the workshops twice a year for permitting, monitoring and compliance for air pollution. 

 

Ms. Smith asked when business licenses were processed, could  material be advanced to those persons.  The Department of Natural Resources of which Environmental Protection would be a division has a pamphlet giving all requirements for permitting, fees, schedules, etc.  This pamphlet has been distributed to any entity which could be covered under the regulations throughout the state.  They have been asked to make businesses aware of this and give them a pamphlet when they come to their department, stated Mr. Dodgion. 

 

Mr. Joe Johnson representing the Sierra Club opposed the specific language of A.B.129.  He felt the need would be to streamline regulations and cut regulations which were unnecessary to comply with the Federal Government regulations. 

Chairman Freeman closed the hearing on A.B. 129.

 

 

 

 

 

 

 

 

 

 

 

 

 

A subcommittee of Mr. Sader, Ms. Smith and Mr. Carpenter was appointed by Chairman Freeman to work on A.B. 115.

 

There being no further business to come before committee, the meeting was adjourned at 3:45 p.m.

 

 

      RESPECTFULLY SUBMITTED:

 

 

                              

      PAT MENATH

      Committee Secretary

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

??

 

 

 

 

 

 

 

Assembly Committee on Natural Resources, Agriculture and Mining

January 27, 1993

Page: 1