EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. Green numbers along left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).

1-1 Section 1. Chapter 459 of NRS is hereby amended by adding thereto

1-2 the provisions set forth as sections 2 to 23, inclusive, of this act.

1-3 Sec. 2. As used in sections 2 to 23, inclusive, of this act, unless the

1-4 context otherwise requires, the words and terms defined in sections 3 to

1-5 11, inclusive, of this act have the meanings ascribed to them in those

1-6 sections.

1-7 Sec. 3. "Administrator" means the chief of the division.

1-8 Sec. 4. "Division" means the division of environmental protection of

1-9 the state department of conservation and natural resources.

1-10 Sec. 5. "Eligible property" means real property located in this state

1-11 that:

1-12 1. Is not listed on the National Priorities List contained in Appendix

1-13 B of Part 300 of Title 40 of the Code of Federal Regulations;

1-14 2. Is not the subject of a pending investigation or proceeding by the

1-15 division; and

1-16 3. Contains the site or probable site of a release of a hazardous

1-17 substance.

2-1 Sec. 6. "Hazardous substance" means a substance or combination

2-2 of substances whose presence gives rise to liability or potential liability on

2-3 the part of an owner or operator under NRS 459.537 or 42 U.S.C. §

2-4 9607(a).

2-5 Sec. 7. "Participant" means a person whose application to

2-6 participate in the program has been approved by the administrator.

2-7 Sec. 8. "Program" means voluntary cleanup and relief from liability

2-8 pursuant to sections 2 to 23, inclusive, of this act.

2-9 Sec. 9. "Prospective purchaser" means a person who is not a

2-10 responsible party and who has entered into a contract, or holds an

2-11 option, to purchase an eligible property for its fair market value in a

2-12 transaction at arm’s length.

2-13 Sec. 10. "Remedial agreement" means an agreement between a

2-14 participant and the division specifying the action to be taken to remove or

2-15 remedy hazardous substances present on an eligible property.

2-16 Sec. 11. "Responsible party" means a person who caused or

2-17 contributed to the release of a hazardous substance.

2-18 Sec. 12. 1. A responsible party with respect to an eligible property,

2-19 or a prospective purchaser of an eligible property may apply to

2-20 participate in the program. The application must be made to the

2-21 administrator in writing and must include:

2-22 (a) The name of the applicant, the name of the owner of the property

2-23 and the name of any responsible party who is not the owner or the

2-24 applicant;

2-25 (b) The legal description of the property;

2-26 (c) An environmental assessment of the property, including the

2-27 source, nature and location of all hazardous substances known to, or

2-28 reasonably believed by, the applicant to be located on the property;

2-29 (d) A proposed general plan for removal or remediation on the

2-30 property;

2-31 (e) The applicant’s certification that the information contained in the

2-32 application is, to the best of his knowledge and belief, true, complete and

2-33 not misleading; and

2-34 (f) An accompanying application fee of $500.

2-35 2. The administrator shall approve or deny an application made

2-36 pursuant to subsection 1 within 60 days after its submission, unless for

2-37 good cause he extends the period for not more than an additional 30

2-38 days. Notice of an extension must be delivered to the applicant before the

2-39 expiration of the original period for processing the application.

2-40 3. If the administrator does not approve or deny the application

2-41 within the time allowed by subsection 2, the application shall be deemed

2-42 approved if it is accompanied by a signed opinion of an attorney at law

2-43 licensed to practice in this state and a signed statement of a consultant

3-1 certified, or exempt from the requirement of certification, as provided by

3-2 NRS 459.500, that:

3-3 (a) The information is, to the best knowledge and belief of each

3-4 signer, true, complete and not misleading; and

3-5 (b) The action proposed in the general plan meets the requirements of

3-6 section 13 of this act.

3-7 4. If the administrator denies an application, he shall deliver to the

3-8 applicant, within 30 days after the denial, a written explanation of the

3-9 reasons for denial.

3-10 Sec. 13. 1. After an application is approved, the participant shall

3-11 submit a remedial agreement to the administrator for his approval.

3-12 2. The administrator shall approve a remedial agreement only if:

3-13 (a) The agreement:

3-14 (1) Provides for the recovery by the division of all direct and

3-15 indirect costs, in excess of the application fee, of overseeing and

3-16 supervising the removal or remediation of the hazardous substance or

3-17 substances on the property;

3-18 (2) Specifies in detail the action constituting the removal or

3-19 remediation to be taken on the property; and

3-20 (3) Includes a grant to the administrator of an irrevocable easement

3-21 or right of entry onto the property to oversee and observe the work during

3-22 and after the removal or remediation;

3-23 (b) The removal or remediation of the hazardous substance or

3-24 substances will:

3-25 (1) Restore the property to the condition to which it would be

3-26 restored if the division caused action to be taken pursuant to NRS

3-27 459.537;

3-28 (2) Be performed by competent, financially responsible technicians

3-29 and supervised by a consultant certified, or exempt from the requirement

3-30 of certification, as provided by NRS 459.500;

3-31 (3) Not cause, contribute to or worsen any release or threatened

3-32 release of a hazardous substance on the property; and

3-33 (4) Adequately protect human health and the environment; and

3-34 (c) The participant is financially capable of undertaking the removal

3-35 or remediation of the hazardous substance or substances.

3-36 3. If the participant is not the owner of the property, the

3-37 administrator shall not approve a remedial agreement unless the owner

3-38 first agrees to the terms of the agreement.

3-39 4. Before approving a remedial agreement, the administrator shall:

3-40 (a) Publish a notice and brief summary of the agreement in a

3-41 newspaper of general circulation in the county where the property is

3-42 located;

4-1 (b) Make reasonable efforts to provide personal notice to all

4-2 responsible parties known to him and to all owners and residents of

4-3 property within 500 yards of the outer boundary of the property on which

4-4 the work is to be performed;

4-5 (c) Provide 30 days for the submission of written comments; and

4-6 (d) Hold a public hearing in the county where the property is located.

4-7 5. If the administrator disapproves a proposed remedial agreement,

4-8 he shall deliver to the participant, within 30 days after the disapproval, a

4-9 written explanation of the reasons for the disapproval.

4-10 Sec. 14. 1. After a participant has completed the action specified in

4-11 his remedial agreement for the removal or remediation of hazardous

4-12 substances, the consultant who supervised the removal or remediation

4-13 shall certify to the administrator that the action has been completed

4-14 according to the agreement. After the administrator has verified the

4-15 certification, he shall issue the participant a certificate of completion.

4-16 2. A certificate of completion must:

4-17 (a) Contain the name of the participant and of any other person

4-18 relieved from liability by the certificate and the legal description of the

4-19 property to which it relates;

4-20 (b) Summarize the nature of the removal or remediation performed on

4-21 the property, and the nature of the relief provided under sections 2 to 23,

4-22 inclusive, of this act; and

4-23 (c) Be recorded by the administrator in the office of the county

4-24 recorder of the county where the real property is located, and indexed to

4-25 show its relation to that real property.

4-26 3. If the administrator does not issue a certificate of completion after

4-27 receiving the supervising consultant’s certification that the work has

4-28 been completed, he shall deliver to the participant, within 30 days after

4-29 his receipt of the certificate, a written explanation of the reasons why the

4-30 certificate was not issued.

4-31 Sec. 15. 1. Except as otherwise provided in section 16 of this act,

4-32 the holder of a certificate of completion issued by the administrator is not

4-33 a responsible party with respect to a release of a hazardous substance

4-34 occurring on the property to which the certificate relates before the

4-35 certificate was issued. The state may not maintain an action under

4-36 federal law or NRS 459.537 to recover costs from the holder with respect

4-37 to such a release.

4-38 2. The relief from liability provided by a certificate of completion

4-39 remains effective despite:

4-40 (a) A subsequent change in state or federal law;

4-41 (b) Subsequent discovery that the removal or remediation did not fully

4-42 restore the property to the condition required by the remedial agreement,

5-1 if the participant exercised reasonable care in the removal or

5-2 remediation; and

5-3 (c) Discovery that a substance not considered hazardous at the time

5-4 the certificate was issued has been released on the property.

5-5 Sec. 16. The holder of a certificate of completion is not released

5-6 from liability:

5-7 1. If he obtained approval of his application, approval of his

5-8 remedial agreement or issuance of the certificate by means of fraud,

5-9 misrepresentation or a knowing failure to disclose material information;

5-10 2. If the existence of the hazardous substance on the property was

5-11 not disclosed in his remedial agreement, whether or not he knew or

5-12 should have known of its existence;

5-13 3. With respect to a release of a hazardous substance caused by him

5-14 or his agent, unless the release is remedied before the certificate of

5-15 completion is issued and is included in the certificate of completion;

5-16 4. In a criminal prosecution or an action for damage to a natural

5-17 resource; or

5-18 5. In an action for nuisance at common law, for trespass or for the

5-19 conduct of an abnormally dangerous activity.

5-20 Sec. 17. 1. The relief from liability provided by section 15 of this

5-21 act extends to another person who:

5-22 (a) Purchases or leases the property to which the certificate of

5-23 completion relates; or

5-24 (b) Acquires, merges with or purchases substantially all of the assets

5-25 of the holder of the certificate,

5-26 after the certificate is issued, if the other person is not otherwise a

5-27 responsible party. The other person is subject to any duties of the original

5-28 holder of the certificate under the remedial agreement or the certificate.

5-29 2. The relief provided to a subsequent owner or lessee continues even

5-30 if it is determined that the original holder of the certificate is not released

5-31 from liability because of a provision of section 16 of this act if:

5-32 (a) The subsequent owner or lessee purchased or leased the property

5-33 in good faith for its fair market value; and

5-34 (b) The actions of the original holder of the certificate cannot be

5-35 attributed to the subsequent owner or lessee under a provision of law

5-36 other than this chapter.

5-37 3. If the original holder of a certificate of completion is a prospective

5-38 purchaser, the relief from liability provided by section 15 of this act

5-39 extends to the person from whom he purchases the property if:

5-40 (a) The seller and purchaser so agree;

5-41 (b) The seller bears the expense of removal or remediation performed

5-42 on the property, directly or indirectly;

6-1 (c) The seller is a responsible party only because of his ownership of

6-2 the property; and

6-3 (d) The administrator approves the extension of relief and

6-4 incorporates it into the certificate of completion.

6-5 Sec. 18. 1. A person who, without participating in the management

6-6 of a parcel of real property, holds or is the beneficiary of evidence of title

6-7 to the property primarily to protect a security interest in the property is

6-8 not a responsible party with respect to a release of a hazardous substance

6-9 on the property if:

6-10 (a) The owner of the property is relieved from liability under sections

6-11 2 to 23, inclusive, of this act with respect to the release;

6-12 (b) The owner or holder of evidence of title did not cause the release;

6-13 and

6-14 (c) The owner or holder of evidence of title does not participate

6-15 actively in decisions concerning hazardous substances on the property.

6-16 2. A lender to a prospective purchaser to enable him to participate in

6-17 a program is not a responsible party solely as the result of making the

6-18 loan.

6-19 Sec. 19. A prospective purchaser is not a responsible party solely as

6-20 the result of:

6-21 1. Conducting an environmental assessment of real property;

6-22 2. Contracting to purchase, or acquiring an option to purchase, real

6-23 property;

6-24 3. Applying to participate in a program; or

6-25 4. Conducting or supervising removal or remediation of a hazardous

6-26 substance or substances, while exercising reasonable care, under an

6-27 approved remedial agreement.

6-28 Sec. 20. 1. The holder of a certificate of completion may maintain

6-29 an action against a responsible party to recover the holder’s costs of

6-30 performing removal or remediation of a hazardous substance or

6-31 substances under a program.

6-32 2. If the holder is a prospective purchaser and his seller qualifies for

6-33 relief from liability under section 17 of this act, the seller may maintain

6-34 an action against a responsible party to recover the seller’s costs of

6-35 performing removal or remediation of a hazardous substance or

6-36 substances under a program.

6-37 Sec. 21. 1. A participant may terminate his participation in a

6-38 program upon 30 days’ written notice to the administrator.

6-39 2. The administrator may terminate the participation of a participant

6-40 in a program only if:

6-41 (a) The participant, after a reasonable period, has not proposed and is

6-42 unlikely to be able to propose a remedial agreement that meets the

6-43 requirements of section 13 of this act;

7-1 (b) The participant fails materially to comply with the requirements of

7-2 the remedial agreement or sections 2 to 23, inclusive, of this act; or

7-3 (c) From information not known to the administrator when the

7-4 remedial agreement was approved, he determines that the removal or

7-5 remediation in progress or to be performed on the property poses a

7-6 serious threat of harm to human health or the environment.

7-7 3. An application, remedial agreement or certificate of completion is

7-8 not an admission of liability on the part of the applicant or participant,

7-9 but a termination of participation does not otherwise affect the rights of

7-10 the division.

7-11 Sec. 22. 1. A decision of the administrator to approve an

7-12 application or a remedial agreement or to issue a certificate of

7-13 completion is final and may not be reviewed.

7-14 2. If the administrator denies an application for any reason other

7-15 than incompleteness, disapproves a proposed remedial agreement, does

7-16 not issue a certificate of completion within the time allowed or terminates

7-17 the participation of a participant in a program, the applicant or

7-18 participant may apply to the state environmental commission to review

7-19 the decision under chapter 233B of NRS.

7-20 Sec. 23. The administrator shall use his best efforts to negotiate with

7-21 the Environmental Protection Agency to ensure that a certificate of

7-22 completion issued pursuant to sections 2 to 23, inclusive, of this act will

7-23 relieve a participant from liability to the United States to the same extent

7-24 as those sections provide relief from liability to this state.

7-25 Sec. 24. NRS 459.537 is hereby amended to read as follows:

7-26 459.537 1. If the person responsible for a leak or spill of or an

7-42 consultants certified pursuant to regulations adopted by the commission.

8-1 2. Except as otherwise provided in this subsection [,] or sections 2 to

8-2 23, inclusive, of this act, the director shall demand reimbursement of the

8-3 account for money expended pursuant to subsection 1 from any person who

8-4 is responsible for the accident, leak or spill, or who owns or controls the

8-5 hazardous waste, hazardous material or a regulated substance, or the area

8-6 used for the disposal of the waste, material or substance. Payment of the

8-7 reimbursement is due within 60 days after the person receives notice from

8-8 the director of the amount due. The provisions of this section do not apply

8-9 to a spill or leak of or an accident involving natural gas or liquefied

8-10 petroleum gas while it is under the responsibility of a public utility.

8-11 3. At the request of the director, the attorney general shall initiate

8-12 recovery by legal action of the amount of any unpaid reimbursement plus

8-13 interest at a rate determined pursuant to NRS 17.130 computed from the

8-14 date of the incident.

8-15 4. As used in this section:

8-16 (a) "Does not act promptly and appropriately" means that the person:

8-17 (1) Cannot be notified of the incident within 2 hours after the initial

8-18 attempt to contact him;

8-19 (2) Does not, within 2 hours after receiving notification of the

8-20 incident, make an oral or written commitment to clean and decontaminate

8-21 the affected area properly;

8-22 (3) Does not act upon the commitment within 24 hours after making

8-23 it;

8-24 (4) Does not clean and decontaminate the affected area properly; or

8-25 (5) Does not act immediately to clean and decontaminate the affected

8-26 area properly, if his inaction presents an imminent and substantial hazard to

8-27 human health, public safety or the environment.

8-28 (b) "Responding" means any efforts to mitigate, attempt to mitigate or

8-29 assist in the mitigation of the effects of a leak or spill of or an accident

8-30 involving hazardous waste, hazardous material or a regulated substance,

8-31 including, without limitation, efforts to:

8-32 (1) Contain and dispose of the hazardous waste, hazardous material or

8-33 regulated substance.

8-34 (2) Clean and decontaminate the area affected by the leak, spill or

8-35 accident.

8-36 (3) Investigate the occurrence of the leak, spill or accident.

8-37 Sec. 25. 1. This section and sections 1 and 23 of this act become

8-38 effective upon passage and approval.

8-39 2. Sections 2 to 22, inclusive, and 24 of this act become effective on

8-40 October 1, 1999.