The Committee on Natural Resources, Agriculture, and Mining was called to order at 1:40 p.m., on Monday, April 26, 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. John Marvel

Mr. Harry Mortenson

Mr. Roy Neighbors

Ms. Genie Ohrenschall

Ms. Bonnie Parnell

GUEST LEGISLATORS PRESENT:

Senator Rhoads, Northern Nevada Senatorial District

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

The meeting of the Assembly Committee on Natural Resources, Agriculture, and Mining was teleconferenced to Room 4401 of the Grant Sawyer State Office Building, 555 East Washington Avenue, Las Vegas, Nevada.

After roll was called the Chairman opened the hearing on S.B. 243.

Mary Lynne Evans, Executive Director for the Nevada State Emergency Response Commission, testified in favor of the proposed legislation, which was introduced by her agency. She explained the measure was a housekeeping issue to correct the date from March 30 to March 31 to correspond with federal regulations. Ms. Evans provided the committee with her statement (Exhibit C).

Linda Eissmann, Policy Analyst for Legislative Counsel Bureau, provided the committee with background information on the proposed legislation (Exhibit D).

Chairman de Braga asked if there were any other issues contained within the measure, to which Ms. Evans responded in the negative. She asked if there were additional questions or comments and there were none. She called for a motion.

The Chairman closed the hearing on S.B. 243 and opened the hearing on S.B. 447.

Cheryl Blomstrom, representing the Nevada Chapter of Associated General Contractors of America (AGC), was the first to testify in support of the measure. She explained the proposed legislation was intended to clarify regulations regarding dust and particulate released into the air during construction activities. It was important to understand powerful, gusting, and unexpected winds were capable of coming out of nowhere and without warning. Contractors, she explained, should not be held liable and fined heavily for such unanticipated events of nature.

Ms. Blomstrom pointed out the organization she represented was not asking for a waiver of air quality regulations, they were asking for consideration regarding unexpected weather conditions. She said if a contractor was operating according to the rules and a situation such as a high wind suddenly occurred, she said it was unfair to fine contractors exorbitant fines as a result of citations for being in violation of air quality standards.

The Chairman asked if the proposed legislation pertained to one specific job site, to which Ms. Blomstrom replied in the negative. She added the measure affected construction projects statewide.

Mr. Hettrick pointed out he had heard from Clark County officials who explained to him the phrase conditions beyond the control of the contractor meant a situation occurring such as the water truck not showing up on site. Ms. Blomstrom said such a situation was outside the bounds of the site permit. Her association was not asking for relief from that type of situation. They were, however, asking for consideration regarding unanticipated weather events, which would only be considered if all over site provisions were met.

Jolaine Johnson, Chief of Bureau of Air Quality, Nevada Department of Conservation and Natural Resources under the Division of Environmental Protection (NDEP) was the first opponent of the proposed legislation. She explained the measure would restrict her agency’s ability to enforce air pollution control measures. Despite monumental efforts and numerous successes, neither the Las Vegas Valley nor the Truckee Meadows had achieved attainment of the National Ambient Air Quality Standards (NAAQS) for particulate matter. Because of the substantial construction throughout Nevada it was more important than ever to maintain and enforce air quality standards to protect human health and well being.

Ms. Johnson said S.B. 447 would allow enforcement of fugitive dust control requirements only if operators were not in compliance with specific operating permit conditions. The result would be confusion and difficulty in determining whether contractors were in compliance with specific permits for site controls to regulate air quality. NDEP and county health districts implemented fugitive dust control requirements in a reasonable manner to address situations truly beyond the ability of the control of site managers and contractors. It was not true that contractors were cited and fined for unexpected and sudden weather conditions. A formal appeal process was available through the State Environmental Commission, the courts, and through county programs. She encouraged the committee to oppose passage of the proposed legislation. Ms. Johnson provided the committee with a copy of a letter from Governor Guinn stating his concern regarding the legality and feasibility of the proposed legislation (Exhibit E). Ms. Johnson’s testimony was included in its entirety in Exhibit F.

Ms. Parnell asked for information regarding the proposed amendment presented to the Senate. Ms. Johnson said she did not contribute to the preparation of the language for the proposed amendment, which was drafted by AGC.

Mr. Carpenter asked how many citations were issued by NDEP and under what circumstances were they issued. Ms. Johnson said over 118 complaints had been received by her agency in 1998, all of which were investigated, and only 9 citations were issued. Most citations were issued because it was proven contractors had not watered down construction sites and specific controls had not been implemented according to specific site permit regulations. Mr. Carpenter asked if any citations had been issued during routine inspections of construction sites performed by her agency, to which Ms. Johnson responded in the affirmative. Mr. Carpenter asked if mining operations ever received citations for fugitive dust. Ms. Johnson said that had been known to occur from time to time. She agreed to provide him with this information.

Mr. Marvel asked how many of the violators cited applied for appeals. Ms. Johnson responded only two appealed the decision; however, both were resolved prior to consideration by the Environmental Commission.

Chairman de Braga asked how the citation process worked. Ms. Johnson explained all issues were considered prior to issuing citations and levying fines. One of the most important issues when considering penalties for violators was the contractor’s history of compliance. Warnings were issued to first-time offenders and a penalty schedule was used to determine appropriate fines. First time offenders paid $250 if cited for fugitive dust and fines could go as high as $10,000 a day for violating clean air standards four times, which was considered a major violation of the fugitive dust regulations and clear air laws.

Mr. Mortenson pointed out many problems related to poor air quality were not caused by disturbed soil. Air quality problems oftentimes were caused by automotive exhaust emissions and from fires. He asked if NDEP could distinguish between particulate matter from those forms of pollution and that which came from disturbed soil on construction sites. Ms. Johnson responded in the affirmative. She explained monitoring from specific specimens could be performed to analyze different kinds of pollutants and determine where they entered the environment. Mr. Mortenson asked if it was possible Department of Conservation and Natural Resources Air Quality Bureau was wrongly citing construction projects as the source of particulate released into the air when in actuality much of those pollutants were caused by automotive activity. She responded in the negative, adding citations were based upon source tests, which evaluated emissions from each facility. Source tests were scientific measurements of the air coming from a specific piece of equipment.

Michael Naylor, Director of the Clark County Health District, was the next opponent to the proposed legislation to testify before the committee from Las Vegas. He pointed out S.B. 447 would undermine the district’s ability to enforce dust control permits for construction activity. Conditions beyond the control of contractors and site managers could become a commonplace defense and could be expanded to include a limitless number of situations that would contribute to further undermining of air quality throughout the state.

Mr. Naylor pointed out misuse of the phrase operating permits in the proposed legislation. He said the technical phrase should be construction site permits. Also, the proposed legislation referred to fines levied by NDEP, but the correct word would be penalties. Mr. Naylor said the proposed legislation would create ambiguities and uncertainties regarding enforcement of clean air standards. Mr. Naylor presented the committee with his written testimony (Exhibit G).

Harold Glosse, Enforcement Supervisor, Clark County Health District Air Pollution Control Division, was the next opponent to address the proposed legislation. In his testimony, he stated he concurred with the testimony of Mr. Naylor and Ms. Johnson that the proposed legislation was counter-productive to the enforcement of air quality standards. Mr. Glosse reiterated NDEP and county health district agencies did not issue citations for dust released from construction sites during sporadic wind events.

Ian Ross, Attorney for Clark County Health District, was the next speaker to testify against the proposed legislation. He said he assisted his agency in the processing of over 150 dust related cases a year. All violations of clean air standards were investigated regardless of whether they were detected by health department officials or by citizen complaint. A complex review system was in place to ensure thoroughness, accuracy, and fairness for all parties concerned. The review board was also a process of checks and balances to provide maximum accountability and quality control. Violators were granted an opportunity to present their case before an independent hearing officer. Air pollutants and fugitive dust problems were extremely important issues, Mr. Ross concluded, that should not be diminished or compromised by the proposed legislation.

Mr. Hettrick asked how the language of the permits was worded regarding the requirement for water trucks to be present and operating on construction sites. Mr. Ross said the contractor or developer applying for the permit specified what dust mitigation plan would be used. Once the plan was approved, the terms described within it would determine what was required on the job site. Contractors and developers were responsible for dust control at all times.

Mr. Hettrick explained the language of the proposed legislation clearly stated the contractors and developers had to follow the guidelines contained in their permits detailing dust mitigation plans. If a contractor allowed work to continue on a job site without a water truck present he was clearly in violation of the terms of the permit. Mr. Ross said the situation was more complex than that because the measure did not address work performed by subcontractors when the holder of the permit was the developer. He said the system currently in place was working; however, the system would break down if the proposed legislation was in place. Mr. Hettrick said the last lines of the measure stated it was the responsibility of the owners and operators of heavy equipment to follow pre-approved dust mitigation plans as a condition of the permit. If a subcontractor was the cause of air quality problems he was the responsible party. Nothing in the proposed legislation prohibited the agency from citing subcontractors if they created pollution problems. Mr. Hettrick suggested new language for an amendment, which would state conditions beyond the reasonable control of the owner/operator.

Chairman de Braga asked if a subcontractor would be responsible and considered an operator on a job site. Mr. Ross said the company held the permit under which all operators worked. Each company was responsible for the dust mitigation plan presented in the permit. The cause of the fugitive dust was usually a person on a piece of heavy equipment who worked for a company who was not the holder of the permit.

Richard Nielsen, Executive Director of Citizen Alert, was the next to testify against the measure. He said wind appeared to be the only type of weather condition the measure addressed. Loopholes and exemption would only serve to promote or aggravate an already serious condition. If windy conditions were to occur, a responsible operator, contractor, or developer should cease working. Mr. Nielsen said the proposed legislation would be contrary to the goal of protecting public health and safety, which was the purpose of air pollution regulations.

Robert Hall, representing Nevada Environmental Coalition, stated his opposition to the measure was based on the fact exemptions to regulations only served to diminish the law, which was in place to protect the environment and all that lived within it. Mr. Hall said S.B. 447 was an example of bad legislation. He said the United States Environmental Protection Agency regulations would have trouble with the proposed legislation, and which would further damage the federal agency’s relationship with Nevada already in jeopardy (Exhibit H).

Chairman de Braga asked Mr. Nielsen in Las Vegas if the Clark County Health District was having difficulty enforcing air quality laws. Mr. Nielsen said there were no enforcement problems. He considered the current laws to be sound and working, and he saw no reason to change the law. The Chairman asked if anyone was present from the northern part of the state who could respond to the same question. Chris Ralph of the Washoe County Health Department Air Quality Division came forward. He said the current status of enforcement of air quality standards was satisfactory and he considered no changes necessary.

Robert Lyle, representing Nevada Trial Lawyers Association, came forward to testify against the proposed legislation. Mr. Lyle explained he represented the people who lived in neighborhoods affected by air pollution from construction sites. The situation was far more serious than imaginable and the people suffered greatly from the effects of fugitive dust and particulate. In some cases visibility was so bad that people could not see their cars parked in their own driveways. Respiratory conditions were the most serious result of fugitive dust.

William Cates, principle planner for the Clark County Board of Commissioners, explained his agency was responsible for preparing air quality plans for the Las Vegas valley. He considered S.B. 447 bad legislation. Mr. Cates said his agency worked closely with Clark County Health District staff regarding air quality standards. He said he was concerned the relationship between Nevada and United States Environmental Protection Agency would be further damaged if the legislation were to pass. Mr. Cates concluded by saying he would suggest stricter guidelines, rather than creating loopholes. He urged the committee not to pass the proposed legislation.

Joe Johnson, representing the Toiyabe Chapter of the Sierra Club, was the last to testify against the proposed legislation. He said the measure was counter- productive to the progress environmentalists had made through the years to protect the environment and make it safe for all living creatures. He emphasized noncompliance areas, particularly Las Vegas Valley, caused the Sierra Club serious concerns (Exhibit I).

Linda Eissmann presented the committee with an informational background guide regarding the proposed legislation (Exhibit J).

The Chairman asked if there were additional questions or comments and there were none. She closed the hearing on S.B. 447 and opened the hearing on S.J.R. 3.

Senator Rhoads, Northern Nevada Senatorial District, was the first to testify in support of the proposed legislation, which was requested by the Legislative Committee on Public Lands and Air Quality during the 1995-1996 interim. During the 1997-1998 interim, the committee learned that the United States Environmental Protection Agency (EPA) failed to incorporate the Grand Canyon Visibility Transport Commission’s findings on regional haze as presented in over 80 meetings into its proposed rules released July 31, 1997. The Legislative Committee thoroughly reviewed the proposed guidelines and found them to be unrealistic, costly, and irrelevant because Nevada made minor contributions to the degradation of air quality in the Grand Canyon (Exhibit K).

Senator Rhoads explained the interim committee voted to express the legislature’s strong disapproval of the proposed EPA regulations regarding regional haze. The intent of S.J.R. 3 was to provide the language to express that disapproval and to urge the Environmental Protection Agency to refrain from adopting them until all controversy had been resolved.

Ms. Johnson was called upon to testify in support of the proposed measure. She said EPA had recently adopted final regulations for regional haze requirements despite serious problems and numerous objections, as well as the expressed concerns of Nevada officials. The EPA was required to promulgate regulations to assure reasonable progress toward meeting the national goal and for compliance with the requirements of the Clean Air Act. The act established the authority of the EPA to create multi-state regions when interstate transport of air pollutants from one or more states contributed to visibility impairment.

During the time the Grand Canyon Visibility Transport Commission was making its assessments, studies were conducted on the increased emissions within the clean air corridor. Ms. Johnson explained the Clean Air Corridor boundaries might result in regional inequities in regard to economic development among the states within the region. Emissions could be capped in the corridor that would contribute 70 to 80 percent of the visibility impacts on "clean days," which were the days the canyon experienced clear air. It was important EPA addressed the standards established for clean days as well as how the clean days standard would be implemented to assure equitable emissions controls within the region. Ms. Johnson said the new regulations constituted an unfunded mandate.

A summary of NDEP recommendations was provided to the committee, along with Ms. Johnson’s testimony (Exhibit L). Among the suggestions proposed was to delay implementation of the new EPA rules until all issues had been adequately assessed. Additionally, EPA should provide more information such as emission factors for area sources of emissions that impacted visibility. The agency must commit to federal requirements of those area sources, which were more appropriately controlled at the federal level. The final rule must establish a coordination process between the states and the federal land managers that would assist in the implementation of the program.

Mrs. Segerblom asked if NDEP was concerned about air quality in the Grand Canyon region or was the agency only concerned about the air quality of regions in Nevada. Ms. Johnson said Nevada was part of the Grand Canyon Commission and contributed to the discussion on regional air quality issues relevant to Nevada, the Grand Canyon, and 16 other parts of the Colorado plateau. Mrs. Segerblom asked if Los Angles was considered a major cause of air quality problems in the Grand Canyon, to which Ms. Johnson responded in the affirmative.

Mr. Marvel asked what sanctions would the EPA apply against Nevada if it was to refuse compliance with the new regulations. Ms. Johnson said the Federal Government had separate implementation plans for states. The federal agency would adopt rules and establish controls within Nevada.

The Chairman asked if other western states were equally concerned about the new EPA rules. Ms. Johnson said some western states had expressed concern, but not all were in a position to oppose the new regulations.

Mr. Hall said he was sympathetic toward the concerns of committee members; however, he considered opposition to the new rules hypocritical because major sources of air pollution in the region of the Grand Canyon had been occurring for a long time without sanction. A pattern had developed in Nevada of not cleaning up our own sources of pollution, such as the Mojave Power Plant, and blaming other regions throughout the country and the world for causing air pollution. Mr. Hall said the problem was not always caused by someone else. He suggested Nevada correct its own problems before blaming others for air pollution.

Mr. Mortenson asked if Mr. Hall had proof the Mojave Power Plant had been polluting the Grand Canyon for a long time. Mr. Hall said his source of information was the Wall Street Journal.

Mr. Johnson was the final speaker to address S.J.R. 3. He explained the Sierra Club was opposed to the measure because Nevada had statutory authority and responsibility for visibility standards within the definition of air pollution. He said it was important to develop standards for clean air and clear visibility. The issue of regional visibility standards must be recognized as part of the state’s statutory obligation to participate in and fund its own programs.

Ms. Eissmann presented the committee with a summary of the proposed legislation (Exhibit M).

Chairman de Braga asked if there were additional questions or comments and there were none. She asked if the committee wanted to amend the measure and remand it back to the EPA. The Chairman called for a motion.

The proposed legislation lost in a roll call vote, which was 6 for and 6 against, with Mr. Carpenter not present for the vote. The motion did not carry.

There being no further business before the committee, the hearing was adjourned at 3:40 p.m.

RESPECTFULLY SUBMITTED:

Sharon Spencer

Committee Secretary

APPROVED BY:

Assemblywoman Marcia de Braga, Chairman

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