The Committee on Natural Resources, Agriculture, and Mining was called to order at 1:34 p.m., on Monday, February 15, 1999. Chairman Marcia de Braga presided in Room 3161 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All Exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Mrs. Marcia de Braga, Chairman

Mrs. Gene Segerblom, Vice Chairman

Mr. Douglas Bache

Mr. John Carpenter

Mr. Jerry Claborn

Mr. Lynn Hettrick

Mr. David Humke

Mr. John Jay Lee

Mr. Harry Mortenson

Mr. Roy Neighbors

Ms. Genie Ohrenschall

Ms. Bonnie Parnell

COMMITTEE MEMBERS ABSENT:

Mr. John Marvel (Excused)

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

After roll was called, Chairman de Braga introduced A.B. 252.

Mrs. de Braga explained that was an act relating to public water, which revised the provisions governing liens upon lands entitled to receive water from an irrigation district, along with other related provisions. The chairman called for a vote.

Chairman de Braga opened the hearing on A.B. 41.

Mr. Carpenter, Assembly District 33, was the first speaker to address the committee in favor of the measure. He introduced Mike Nannini, Elko County Commissioner, and Stephanie Licht, representing Elko County. Mr. Carpenter explained the measure had been introduced in response to an event, which occurred the summer of 1998 in the South Fork of Jarbidge Canyon. During the spring and early summer of 1995, a 100-year flood event occurred in Jarbidge Canyon. The flood was a result of prolonged rain after a winter marked by unusually high levels of snowfall. After the flood, the United States Forest Service (USFS) conducted an extensive environmental analysis, and concluded the portion of the road washed out as a result of the flooding should be rebuilt. USFS decided to construct a trail rather than rebuild the road. Up until that point, Elko County and USFS had a very good working relationship. The county decided to use their emergency powers to rebuild the road. Conflict resulted because Elko County did not have a permit from the Nevada Division of Environmental Protection (NDEP) to do that work. Mr. Carpenter said NDEP issued a cease and desist order to Elko County based upon false and hearsay evidence it received from United States Forest Service. The agency threatened to press for both civil and criminal action against the county. Mr. Carpenter said NDEP should not have issued such an ultimatum without first conducting an investigation.

Mr. Carpenter explained the measure did not prevent anyone from reporting incidents to NDEP. However, A.B. 41 would prevent the agency from acting without a proper investigation. United States Forest Service analysis of the event was exaggerated, and due process was denied Elko County, Mr. Carpenter continued. When the Environmental Commission visited the site, it was determined the work Elko County had done on the road was not worthy of the level of reckless and arbitrary condemnation it had received. He said it was not prudent for people or agencies with personal agendas to report misinformation about others to state authorities.

Mr. Carpenter said the measure was designed to protect citizens against unfounded charges, and establish logical regulatory planning. Elko County did nothing more than restore proper stream and fishing habitat. United States Forest Service went into the area and did a great deal of damage in an effort to restore the stream bed, and consequently allowed a great deal of debris and sedimentation to enter the stream. The Environmental Commission held a hearing and requested NDEP grant a permit to Elko County to finish their work along the stream. The agency issued permits to both Elko County and United States Forest Service to complete their work simultaneously. As a result, the Corps of Engineers refused Elko County a permit to complete the work, and granted a permit to USFS instead. Despite the fact NDEP had inspectors monitoring the work done by the forest service, it was unsatisfactory, and had caused greater harm to the environment than what the county had done. However, no action was taken against USFS.

Mr. Carpenter said the legislation required state agencies to properly document and investigate incidents before applying extreme sanctions on individuals or other entities.

Mrs. de Braga asked if Elko County had been issued a permit to do any work on the streambed. Mr. Carpenter responded in the affirmative, adding the permit was issued later by NDEP to go back into the area and work on stabilizing the stream banks and to complete work on the road. He said the ownership of the road was in question. For many years prior to that incident, the USFS and Elko County had a very good working relationship, and had jointly maintained the road. Mr. Carpenter added Senator Reid was also working on bringing the incident to an amicable conclusion. The Assemblyman pointed out the road was a county road, and had existed for a very long time before the USFS became involved.

Mrs. Segerblom asked if the road was below Wild Horse or below Idaho. Mr. Carpenter said there were two roads into Jarbidge. The road he was referring to was south of Jarbidge and ended at the trailhead to the wilderness area. Jarbidge was an old mining town located in the northern most tip of Elko County.

Ms. Ohrenschall said she was confused about the wording of subsection 1 of section 1, specifically the language stating if the action is based solely upon a report or other information provided to the director by an agency of the United States or this state other than the Division of Wildlife. She asked why was that agency an exception to the rule. Mr. Carpenter explained the language was meant to state the action was to be based solely upon information provided to NDEP from an agency of the United States, in that instance the forest service, or the State of Nevada, other than the Division of Wildlife. He said that meant any other outside agency or division. He agreed the language needed clarification. Mr. Carpenter said he welcomed all proposed friendly amendments to A.B. 41 in order to clarify the measure.

Mr. Humke agreed the wording of the subsection initially confused him as well. He added after hearing Mr. Carpenter’s testimony and reviewing the attorney general’s opposing position, the language clearly stated the intent of the measure and needed no clarification.

Mike Nannini, Elko County Commissioner, was the next to speak in support of the legislation. He asked the committee to understand the county’s position. Elko County had maintained the road in complete cooperation with the USFS for a very long time. Because of the good relationship between the two agencies, Elko County was not prepared for the disagreement with USFS, or the severe injunctions NDEP leveled against the county. After the flood of 1995 in the Jarbidge area, USFS told Elko County it understood the need to rebuild the section of road that had gotten washed out, and agreed to cooperate with Elko County on that effort. Elko County considered the proposed work arrangement to be a good idea. Together, the two entities made tentative plans to thoroughly rebuild the road, stream, and campsites damaged in the flood event.

Eventually, Mr. Nannini continued, Elko County began work on the road under an emergency order issued by the county. The county did not anticipate any disagreement from USFS. A few years later, a forest ranger, acting without direct orders from the forest service, and without consultation with any of the other entities involved, made an announcement to the citizens of Jarbidge, rather than rebuild the road, a trail would be constructed in its place. USFS backed up that statement, and cut off all communication with Elko County without discussion or prior notification. Elko County decided, after the action by the forest service, to continue its work rebuilding the road. Shortly after, a cease and desist order was issued by NDEP against Elko County without an investigation, and based exclusively on hearsay evidence provided by USFS.

Mr. Nannini said upon receiving the cease and desist order, Elko County stopped all work on the road. Elko County requested on site inspection of the project, but none was granted. As a result, NDEP accused the county of doing additional things to the area, which they had not done. The altercation accelerated when NDEP accused Elko County of destroying the streambed, which Elko County did not do. The county admitted the backhoe bucket was the only thing that had entered the stream, and that was to open the dike in the stream to allow water to flow into its original channel.

Eventually, the county convinced NDEP to inspect the work Elko County had done, Mr. Nannini continued. After the inspection, NDEP acknowledged to Elko County the work had been done satisfactorily, and admitted the forest service complaint was without justification. Shortly thereafter, a hearing was held, and it was agreed Elko County had done the right thing by repairing the road and opening the dike.

The chairman asked how maintenance arrangements had been made in the past. Mr. Nannini explained Elko County and USFS had mutual understanding that for the most part Elko County took care of road maintenance in the area. It was not a high maintenance road, and Elko County had the equipment and manpower to do the job. Due to the ongoing good relationship between the two agencies, Elko County never anticipated there would be a problem.

Chairman de Braga asked if there had been any notification by the forest service that Elko County was expected to fix the road. Mr. Nannini responded in the negative.

Mr. Lee stated Elko County was within its rights to work on the road without a permit because it was a county road. He added a permit would have been needed if the county was going to work on the stream, which it was not. Mr. Nannini agreed with Mr. Lee’s analysis of the situation. Mr. Lee asked when would the issue of ownership of the road be resolved so the problem would not occur again. Mr. Nannini said definitively Elko County considered the road to be its responsibility.

Mr. Carpenter added it was important to remember after a natural disaster such as a flood, a specific time frame was granted to local entities to repair any damages that resulted without the need for permits. After the flood, Elko County repaired many roads in that area, which had been washed out. Elko County considered repairing the remaining 2 miles of road into the canyon a logical progression. USFS wanted to make that stretch of road part of the wilderness area, despite the objections of Elko County citizens. Mr. Carpenter agreed that area of road should not be included in the wilderness area. He said A.B. 41 would be instrumental in avoiding similar problems in the future.

Stephanie Licht, representing Elko County, was the next to speak in support of the measure. Ms. Licht gave the committee a letter from the Elko County District Attorney’s Office also in support of the bill. The letter had attachments to it, which contained copies of NDEP’s phone log during the time the incident on the road occurred. The log clearly showed USFS did not have a witness to Elko County having equipment in the stream. The log bore a note stating the complaint against Elko County was made by someone hiking in the area who was a friend of an employee of the United States Fish and Wildlife Service. Elko County District Attorney Kristin McQueary considered that to be unsubstantiated double hearsay evidence (Exhibit C). Ms. Licht added the phone log substantiated both Mr. Carpenter’s and Mr. Nannini’s description of the situation.

Mrs. de Braga called for additional testimony in support of the legislation. Charles Lawson, Legislative Director of the Nevada Rural Water Association, spoke in favor of A.B. 41. Mr. Lawson said his organization’s greatest concern regarding the matter was the lack of on site monitoring and inspection of the work Elko County had done, and that sanctions were imposed upon the county based on unsubstantiated hearsay evidence.

Mike Baughman, representing Humboldt River Basin Water Authority (HRBWA) spoke in favor of A.B. 41. Mr. Baughman stated the main concern of HRBWA was how the state conducted itself regarding the issue of non-point source water pollution. There was a trend throughout the country, including Nevada, to shift attention from point source water pollution to non-point sources, which tended to be far more problematic to identify and much more difficult to deal with. The fundamental question was should state agencies confront local governments in rural areas of the state with a different set of rules and procedures than the Federal Government was subjected to. Mr. Baughman said the measure would force the state to exercise its delegated authority in an equitable manner. He said it was important to remember most of the land in rural areas of Nevada were public lands, which supported vital natural resource based industries. Because many of those natural resource based industries contributed to the problem of non-point source water pollution, issues similar to the Elko County problem were bound to occur again. He said A.B. 41 was a good vehicle for dealing with the problem.

Chairman de Braga called for testimony in opposition to the measure. Allen Biaggi, Administrator of NDEP, was the first to speak against the bill. He said the measure would significantly restrict the actions of the Division in the protection of public health and water resources restricting information received from federal and state agencies. The legislation would require NDEP to conduct duplicative, expensive, and time-consuming independent investigations before action could be taken.

Mr. Biaggi pointed out Nevada was the most arid state in the union, and it had one of the smallest state environmental agencies in the county. Because approximately 87 percent of the state was federally owned, it was impossible to provide full coverage to all areas of the state. The Federal Government provided extremely valuable information and aid, and A.B. 41 would restrict that important resource. He explained all individuals or organizations were subject to enforcement action by NDEP equally. If a party did not believe it had been treated fairly, the division’s actions could be appealed by requesting a review by the State Environmental Commission. The commission’s decisions could be appealed to District Court, and to higher courts if necessary. The process had been in place in Nevada since 1997, and it worked very well, Mr. Biaggi added.

The protection of public health, environmental quality, and due process were requirements of the law and were priorities to NDEP, continued Mr. Biaggi. He said it was imperative to avoid duplication, government expansion, and unnecessary additional costs to taxpayers. Mr. Biaggi‘s testimony is included in Exhibit D.

Mr. Biaggi said, in response to Mr. Nannini’s and Mr. Carpenter’s testimony, he wanted to read the State Environmental Commission order responding to Elko County’s appeal of NDEP’s sanctions again it. The order, dated July 23, 1998, mandated NDEP’s decision be upheld. In modification, the order continued, Elko County would be required to submit an application for a permit within 20 days of the date of the order, and prior to any further construction activities on the South Canyon Project in Jarbidge. Elko County did as ordered. The order also stated the division had to exercise expediency in recognizing the need to stabilize work previously done in the area, and to review the action taken on Elko County’s permit application. NDEP did provide Elko County with a "rolling-stock" permit, and the division would waive additional permit requirements to the extent allowed by law. Finally, Mr. Biaggi continued, the commission directed the division to impose a penalty not to exceed $1,000 for all dates of violation. Elko County had appealed the order of the State Environmental Commission to District Court. NDEP had not issued any penalties in the case to date. Mr. Biaggi said the issue was not who had rights to the road, or land ownership. He said the issue was the Elko County’s failure to secure a permit for the work it did in South Canyon.

Chairman de Braga asked Mr. Biaggi if Elko County had obtained a permit for work it had previously done on the road project. He replied in the negative. The chairman asked if cease and desist orders had been issued by NDEP in the past for work done by Elko County without permits. Mr. Biaggi replied in the negative, adding the only time his agency was aware of work done on the road by Elko County was in 1995 shortly after the flood, which was considered an emergency action. At that time no action was taken by NDEP against Elko County for not having a permit. Mrs. de Braga asked if the work performed by Elko County on the road after the flood event had not been considered an emergency action, and no work permit had been required, what was the objection United States Forest Service had regarding the county’s work. Mr. Biaggi said Elko County had a valid point in its understanding the forest service was going to open up the road. Rightly or wrongly, there was the appearance the forest service had gone back on that arrangement when it proposed to construct a trail instead of rebuilding the original road. Based upon that, the Elko County Commissioners issued a resolution that Elko County should unilaterally rebuild the road. Mr. Biaggi said that was the main point of debate regarding NDEP’s complaint against Elko County. He said there was plenty of time for the county to secure a rolling stock permit.

Chairman de Braga asked what occurred that prompted NDEP to conduct an investigation of Elko County. Mr. Biaggi responded under the provisions of A.B. 41, federal and state agencies were required to notify NDEP of any action taken by another entity that caused, or could cause, pollution. That was what trigged NDEP’s action against Elko County. He said sometimes the activities undertaken by NDEP were not readily apparent, but in Jarbidge it was most obvious there was sedimentation in the stream from the work performed by the county, thus prompting an investigation by his agency.

Chairman de Braga pointed out there was a fiscal note estimated at $737,000 per year. Mr. Biaggi concurred; adding the total cost for most of his agency’s programs amounted to approximately $50,000 per year. However, when NDEP projects affected the Nevada Test Site, things were far more complicated and expensive. There were $55 million worth of clean-up activities at the Nevada Test Site that year. The fiscal note, he added, was based upon the impact the measure would have on the division if it had to duplicate work processes or verify and inspect work activities other agencies performed. Those costs were estimated to be 1 percent of $55 million.

Mr. Carpenter asked if NDEP followed up on any work in progress at the Nevada Test Site, to which Mr. Biaggi responded in the negative. He added his agency had a "tremendous presence" at the site, but either the United States Department of Defense (DOD) or the Department of Energy (DOE) gathered most of the information. NDEP relied on the data compiled by those agencies to determine his agency’s action at the Nevada Test Site. The federal agencies at the site took samples from the wells they drilled and from soil samples to determine pollution and sediment levels. The ground water at the Nevada Test Site was anywhere from 12,00 to 45,000 feet deep, and the cost of one monitoring well was in the millions of dollars. NDEP did not have the resources to put in wells in that area. Therefore, they relied on the federal agency information.

Mr. Carpenter said since there were representatives of NDEP at the Nevada Test Site the agency should be doing its own testing and sampling rather than depend on the data gathered by the Federal Government, or suffer the loss of a great deal of credibility. Mr. Biaggi agreed that Nevadans should be regulating Nevada, but there were circumstances that caused a state agency to rely on federal agency information. He said legislation restricted the use of NDEP’s information by other state agencies, an issue that concerned him. He said, regarding public health and environmental issues, it was not a good idea for state agencies to restrict the exchange of information.

Mr. Mortenson said he understood Mr. Biaggi had developed a financial impact estimate based on work performed at the Nevada Test Site. He said he did not believe A.B. 41 required NDEP to drill its own wells there. He said it was all right for the DOE and DOD to drill the wells at the test site; however, he suggested Mr. Biaggi’s agency scrutinize work done by those federal agencies. Mr. Mortenson added it was important for NDEP to examine the results of Federal Government analysis of those test wells, and to request water samples to do its own analysis. He said the fiscal impact Mr. Biaggi suggested was not accurate because the legislation only required NDEP to monitor test wells, not do the actual work.

Mr. Biaggi agreed with Mr. Mortenson’s evaluation, adding the wording of the proposed legislation mandated the data received from the federal agencies not be taken at face value. A.B. 41 would require NDEP do its own information gathering and to pay for testing water samples. Some tests cost between$2,000 and $3,000 to perform. Mr. Mortenson said every sample did not need to be analyzed, but enough needed to be conducted in order to confirm the results of DOE and DOD. Mr. Mortenson asked Mr. Biaggi to re-state the fiscal impact the measure would have on his agency. Mr. Biaggi said that impact included the cost of gathering data independent of the Federal Government because the measure stated NDEP could not base its decisions solely upon information provided by federal agencies. Air, soil, and water sampling was a very expensive process.

Mr. Hettrick agreed with Mr. Mortenson, and suggested the fiscal note be more specific regarding 1 percent of the value of $55 million. Mr. Biaggi apologized for the appearance of padding the fiscal note for the proposed legislation. He added the fiscal impacts for most programs were relatively minor. However, the fiscal impacts for programs at the Nevada Test Site were very high. Mr. Hettrick said A.B. 41 should be amended to exclude the Nevada Test Site.

Ms. Ohrenschall said, regarding the wording of subsection 1 of section 1, the bill provided NDEP with enough latitude to take action based solely on reports compiled from the data presented. Therefore, the fiscal impact was not nearly as great as Mr. Biaggi had suggested. Mr. Biaggi thanked the assemblywoman for her observation, adding it was rare for his agency to have multiple reports dealing with the same issues. The reports were very costly to compile and rarely was there collaborating evidence from other agencies. Ms. Ohrenschall suggested NDEP request second reports and collaborating evidence from the Federal Government who would be willing to oblige the state agency. Mr. Biaggi expressed concern Ms. Ohrenschall’s suggestion might not work because the Federal Government could choose not to cooperate with NDEP. If that happened, efforts to complete projects could be thwarted by the Federal Government.

Mrs. Segerblom asked if information from the Federal Government was dependable. Mr. Biaggi stated most of the time that information was correct, and was widely used by NDEP to base its actions.

Mr. Carpenter said Mr. Biaggi’s analysis of Federal Government information was not always accurate because the United States Forest Service had reported bulldozers in the stream near Jarbidge when none were present. He added A.B. 41 provided for seeking injunctive relief, as well as allowing for the attorney general to issue orders of cease and desist and commence both civil and criminal action. Mr. Carpenter asked how often NDEP issued such injunctive actions. Mr. Biaggi said his division issued such orders frequently to DOE and DOD, but rarely issued orders for criminal actions.

Mr. Mortenson said he had not meant to imply DOE would intentionally falsify data, but in the business of science, it was not uncommon for a contracted analyst to make systematic errors. He suggested it was good science to randomly backup testing and to review data from other sources.

The chairman asked if NDEP was to issue a fine to Elko County, would it be for being in the stream rather than for working on the road. Mr. Biaggi responded in the affirmative. She asked how would it be determined who owned the road Elko County was working on. Mr. Biaggi said he expected that issue was between Elko County and United States Forest Service, and would be litigated later in the year.

Mr. Hettrick asked Mr. Biaggi to explain the photos of the stream that had been passed around committee. Mr. Biaggi said the photos showed the natural dam located in the stream had been pushed by floodwater onto what was left of the road. Elko County Road Department had to cross the creek to do their work on the road. There was a photo which showed that as well as a photo of the breaching of the dam in the stream, causing additional sedimentation. NDEP considered that to be point source pollution, requiring permits. He added his agency’s requirements were not onerous, and were based on best management practices, for example erecting silt fence. Also, the permit process took less than a week. Mr. Hettrick said he understood NDEP’s point of view; however, the offense Elko County allegedly committed was a technicality. He asked if Elko County had requested a permit from NDEP would it have received one, to which Mr. Biaggi responded absolutely.

Chairman de Braga called for testimony in opposition to the measure. The first to speak against A.B. 41 was Ed Wagner, representing the Nevada Wildlife Federation. He stated the measure restricted the director of the Department of Conservation and Natural Resources (DCNR) from protecting the state’s most valuable resource, water. He said it was important to protect springs, streams, rivers, lakes, reservoirs, and subsurface water. Any violation required immediate intervention. Mr. Wagner’s testimony is included as Exhibit E.

William Frey, Deputy Attorney General, was the next to speak in opposition to the proposed legislation. Mr. Frey explained he was speaking on behalf of NDEP. He submitted a letter from Attorney General Frankie Sue Del Papa (Exhibit F) stating her opposition to A.B. 41 was based on potential additional expenses the measure could cost NDEP because it required the agency to conduct costly investigations. The attorney general also cited possible consequences to Nevada’s delegation under the Federal Water Pollution Control Act (FWPCA) as another reason for her opposition. Mr. Frey expounded upon that opinion by stating a potential consequence of the measure was the possibility Nevada would lose its state delegation to the Water Pollution Discharge Permitting Program. He said section 402.b of the FWPCA required the attorney general submit a statement to the United States Environmental Protection Agency (EPA) confirming the state’s statutes provided adequate authority to carry out the state’s water pollution control program. The FWPCA also required the state program to have the ability to immediately restrain any person engaged in unauthorized activity.

The next to speak against the proposed legislation was Julie Wilcox, representing Southern Nevada Water Authority. She said last session the Nevada Legislature created a groundwater management program in southern Nevada for aquifer protection. Ms. Wilcox pointed out source contamination was the biggest threat to the Las Vegas water supply. She said the measure would eliminate NDEP’s ability to quickly respond to contain and prevent water contamination and pollution.

Susan Miller, representing Sierra Pacific Power Company, spoke against A.B. 41. She said the bill could delay, if not prevent, containment and timely clean up of pollution in groundwater. Ms. Miller suggested an amendment be added under section 1, subsection 2, which would allow NDEP to respond promptly to any public health and safety emergency that threatened drinking water supplies. In the case of such an emergency, investigations would not be required prior to the agency’s response.

Chairman de Braga clarified Ms. Miller meant an immediate threat would allow NDEP to respond instantaneously. She said she was concerned the expression immediate threat was too broad a term. However, some provision for emergencies was reasonable.

Mr. Carpenter stated it was necessary to respond to immediate threats, such as gasoline flowing into a river would warrant immediate response and clean up. He said it was never his intention the bill would inhibit public health and safety emergencies.

David Bobzien of the Nevada State Council of Trout Unlimited said his organization was composed of over 600 anglers and conservationists who opposed A.B. 41. He stated the measure was a threat to that organization’s efforts to protect and restore Nevada’s native fisheries throughout the state. On July 21, 1998, Elko County shocked and angered conservationists, anglers, and environmental agencies when it bulldozed a 300-yard section of the Jarbidge River, the world’s southernmost habitat of the endangered native Bull Trout. He said the proposed legislation would inhibit the ability of the Department of Conservation and Natural Resources from stopping polluters in the act. Those polluters were essentially vandals. His testimony is contained in Exhibit G.

Mr. Hettrick, directing his statement to Mr. Bobzien, said Mr. Biaggi of NDEP already testified he would have issued a permit to Elko County to do the exact same work it did without a permit. The exact same work, done with a permit, would have inflicted the exact same impact on the stream and the trout in it. He said he did not see the difference, nor did he appreciate Elko County workers being called vandals. Mr. Bobzien apologized for using the expression.

The chairman asked Mr. Bobzien what his information source was. He responded his organization was involved in monitoring the environment and legislation concerning the environment. He explained a member of Trout Unlimited was present at the time Elko County was working in the streambed.

Chairman de Braga said she was certain all parties were hopeful compromises would be reached, which would ensure a good result for all concerned.

Mr. Biaggi said he did not mean to imply that, if a permit had been obtained by Elko County, the same work would have been performed. He said best management practices, such as silt fence and sedimentation basins, would have been employed. Those preventive measures would have minimized the impact of sedimentation into the stream.

Mr. Neighbors asked Mr. Bobzien if members of his organization were on site at the time the work was being done by Elko County. Mr. Bobzien replied in the affirmative, adding video pictures were taken by Trout Unlimited.

Mrs. de Braga asked what was the main focus of Trout Unlimited. Mr. Bobzien answered it was a conservation based organization made up of predominantly anglers.

Joe Johnson, a private citizen and member of the environmental commission, spoke against the proposed legislation. He said it was an attack on the ability of NDEP to maintain water quality throughout the state. He was concerned that, in the case of Jarbidge, due process had been denied Elko County. However, Mr. Johnson said the measure interfered in the normal process of the state to intervene on environmental matters concerning water pollution. He urged the committee to vote against the measure.

The chairman called for a subcommittee to meet on February 23, 1999, at 3:30 p.m. to discuss A.B. 41 further. Mr. Mortenson was to be chairman, and other members included Mr. Carpenter and Mrs. Segerblom.

Chairman de Braga closed the hearing on A.B. 41.

Mr. Biaggi, Administrator of NDEP, was called upon to give his presentation. Along with a slide presentation, Mr. Biaggi provided the committee with his agency’s brief, Exhibit H, detailing the main aspects of NDEP. The main objective of his agency was to protect and enhance the environment of the state consistent with public health needs and recreational enjoyment. The division was under the Nevada Department of Conservation and Natural Resources, with over 22 percent of its employees engineers, and 44 percent environmental scientists. The division was almost exclusively funded through Federal Government grants.

Mr. Biaggi provided the committee with a brochure, "Nevada Environmental Small Business Assistance Program," Exhibit I. The purpose of the program was to provide businesses with information and understanding of environmental rules which applied to particular industries, to assist businesses in acquiring permits, identify sources of financing for pollution control equipment, and to provide access to the latest information regarding environmental issues, such as air and water quality, and solid and hazardous wastes.

Next, Mr. Biaggi provided the committee with an overview of the Bureau of Air Quality, a bureau under his division (Exhibit J). The report presented data on monitoring for various pollutants and to identify trends in those pollutant levels. The United States Environmental Protection Agency (EPA) had established

National Ambient Air Quality Standards (NAAQS), in order to protect human health, as well as studying the effects of air pollution on vegetation, materials, and visibility.

Mr. Biaggi presented the committee with Exhibit K, "A Summary of Past and Present Section 319(h) Water Quality Projects as of February 12, 1999." That handout detailed the approximately 86 projects with which the division was involved. Those projects ranged from working with ranchers on conservation district projects throughout the state, University of Nevada programs such as the Cooperative Extension, tribal projects, water district programs, and forestry programs. The Bureau of Water Quality, also under NDEP, was assigned the task of protecting water quality by establishing standards consistent with designated uses, and to monitor and access the achievements of those standards. The bureau employed 16 people, and was predominantly federally funded.

Mr. Hettrick told Mr. Biaggi that over the past several years he had the opportunity to work with Mr. Biaggi and NDEP. He found the agency to be very helpful. That cooperative working spirit was an issue entirely separate from the incident that occurred at Jarbidge regarding the ground water pollution caused by the work Elko County performed without a permit.

Mr. Mortenson stated in southern Nevada environmental issues never seemed to be resolved, they just faded away. One such issue, which particularly bothered him, he said, was the sharp increase in radioactivity found in the water of Lake Mead. Mr. Mortenson wanted to know what was causing the increase in radioactivity in Lake Mead, and was the agency successful in filtering out the radiation. Mr. Biaggi stated SNWA was responsible for drinking water quality in the Las Vegas Valley, and, along with NDEP, was responsible for taking samples and actively monitoring the water quality of the lake. Mr. Biaggi speculated the radioactivity might be naturally occurring, but he was not sure. He was certain, however, the issue was not fading away. NDEP and its Bureau of Water Quality, along with SNWA, were actively working on correcting the problem.

Mr. Neighbors asked why a $250,000 fine was imposed upon the Ponderosa Farm in Amargosa Valley, Nevada. Mr. Biaggi said in February 1998, during an El Nino winter, the Amargosa River experienced actual water flow in the upper part of the river, near the dairy farm. The farm had been emitting an environmentally toxic discharge, which eventually flowed into the river and into California. That occurrence caused California to take action against the farm through United States Environmental Protection Agency (EPA). A fine of $250,000, payable over 7 years, was imposed by the EPA through a civil

action. NDEP, under a criminal action, imposed an additional fine of $35,000, payable over 3 years, through a criminal action. A plea bargain was eventually struck between the owner of the farm, the operator, and EPA.

Mr. Carpenter asked Mr. Biaggi to explain NDEP’s TRI program. Mr. Biaggi explained that was the division’s Toxic Release Inventory Program. It was a federal program, which was in place for many industries for a long time. The program required industries to monitor and report the waste released from smokestacks, or waste products shipped off site for disposal. The information was compiled in a federal database, and released to the public. The intent of the program was to inform communities as to what was being generated and emitted into their local environments. Mr. Biaggi said the mining industry had been incorporated into the monitoring and data collecting process due to modifications of federal regulations. The mining industry had unique waste byproducts, because most of those waste products had very low toxicity levels, and low concentrations of toxins. However, mining produced a large amount of waste products. The Federal Government was revising TRI guidelines, which would reveal the mining industry was one of the largest producers and releasers of toxic wastes. Due to the size and scope of the mining industry, Mr. Biaggi continued, the environmental hazards posed by the mining industry to

Counties, such as Elko and Eureka, could be devastating.

Mr. Carpenter asked if it were possible NDEP would work together on a resolution to address the problem. Mr. Biaggi responded in the affirmative. He said he anticipated the mining industry would also cooperate on such an effort.

Mrs. Segerblom asked if it was dangerous to drink the water from Lake Mead, to which Mr. Biaggi responded in the affirmative, adding it was not a good idea to drink from any surface water body.

The chairman asked if there were any other questions or comments, and there were none. The meeting was adjourned at 4:10 p.m.

RESPECTFULLY SUBMITTED:

Sharon Spencer,

Committee Secretary

APPROVED BY:

Assemblywoman Marcia de Braga, Chairman

DATE: