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 administrator of the division.

1-8 Sec. 3.5. "Commission" means the state environmental commission.

1-9 Sec. 4. "Division" means the division of environmental protection of

1-10 the state department of conservation and natural resources.

1-11 Sec. 5. "Eligible property" means real property located in this state

1-12 that:

1-13 1. Except as otherwise provided in section 11.5 of this act, is not

1-14 listed on the National Priorities List contained in Appendix B of Part 300

1-15 of Title 40 of the Code of Federal Regulations;

1-16 2. Is not the subject of a pending investigation or ongoing

1-17 enforcement action of the division; and

1-18 3. Contains the site or probable site of a release of a hazardous

1-19 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 pursuant to 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:

2-17 1. A current or former owner or operator of a site or facility who

2-18 caused or contributed to the release of a hazardous substance at the site

2-19 or facility; and

2-20 2. A generator or transporter of a hazardous substance who caused

2-21 or contributed to the release of the hazardous substance at a site or

2-22 facility.

2-23 Sec. 11.5. Real property located in this state that is listed on the

2-24 National Priorities List contained in Appendix B of Part 300 of Title 40

2-25 of the Code of Federal Regulations shall be deemed to be eligible

2-26 property if:

2-27 1. The property satisfies the elements of the definition of eligible

2-28 property set forth in subsections 2 and 3 of section 5 of this act; and

2-29 2. The listing of the property on the National Priorities List is

2-30 unrelated to the hazardous substance that a participant intends to remove

2-31 from or remediate on the property pursuant to a remedial agreement

2-32 submitted pursuant to section 13 of this act.

2-33 Sec. 12. 1. A responsible party with respect to an eligible property,

2-34 or a prospective purchaser of an eligible property may apply to

2-35 participate in the program. The application must be made to the

2-36 administrator in writing and must include:

2-37 (a) An environmental assessment of the property, including the

2-38 source, nature and location of all hazardous substances known to, or

2-39 reasonably believed by, the applicant to be located on the property;

2-40 (b) A proposed general plan for removal or remediation on the

2-41 property; and

3-1 (c) The application fee and any other information required pursuant

3-2 to the regulations adopted by the commission pursuant to section 22.5 of

3-3 this act.

3-4 2. The administrator shall approve or deny an application made

3-5 pursuant to subsection 1 within 60 days after its submission, unless for

3-6 good cause he extends the period for not more than an additional 30

3-7 days. Notice of an extension must be delivered to the applicant before the

3-8 expiration of the original period for processing the application.

3-9 3. If the administrator denies an application, he shall deliver to the

3-10 applicant, within 30 days after the denial, a written explanation of the

3-11 reasons for denial.

3-12 Sec. 13. 1. After an application is approved, the participant shall

3-13 submit a remedial agreement to the administrator for his approval.

3-14 2. The administrator shall approve a remedial agreement only if:

3-15 (a) The agreement:

3-16 (1) Provides for the recovery by the division of all direct and

3-17 indirect costs, in excess of the application fee, of overseeing and

3-18 supervising the removal or remediation of the hazardous substance or

3-19 substances on the property;

3-20 (2) Specifies the substance to be removed from or remediated on the

3-21 property, the actions to be taken and the standards to be met with respect

3-22 to removal or remediation, and the uses for which the property will not

3-23 be suitable after the removal or remediation is carried out; and

3-24 (3) Includes a grant to the administrator of an irrevocable easement

3-25 or right of entry onto the property to oversee and observe the work during

3-26 and after the removal or remediation;

3-27 (b) The removal or remediation of the hazardous substance or

3-28 substances will:

3-29 (1) Restore the property to the condition to which it would be

3-30 restored if the division caused action to be taken pursuant to NRS

3-31 459.537;

3-32 (2) Not cause, contribute to or worsen any release or threatened

3-33 release of a hazardous substance on the property;

3-34 (3) Adequately protect human health and the environment; and

3-35 (4) Comply with any applicable regulations adopted by the

3-36 commission pursuant to section 22.5 of this act; and

3-37 (c) The participant is financially capable of undertaking the removal

3-38 or remediation of the hazardous substance or substances.

3-39 3. If the participant is not the owner of the property, the

3-40 administrator shall not approve a remedial agreement unless the owner

3-41 first agrees to the terms of the agreement.

3-42 4. Before approving a remedial agreement, the administrator shall:

4-1 (a) Publish a notice and brief summary of the agreement in a

4-2 newspaper of general circulation in the county where the property is

4-3 located;

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

4-5 responsible parties known to him and to all owners and residents of

4-6 property within 500 yards of the outer boundary of the property on which

4-7 the work is to be performed;

4-8 (c) Provide 30 days for the submission of written comments; and

4-9 (d) Hold a public hearing in the county where the property is located.

4-10 5. If the administrator disapproves a proposed remedial agreement,

4-11 he shall deliver to the participant, within 30 days after the disapproval, a

4-12 written explanation of the reasons for the disapproval.

4-13 Sec. 14. 1. After a participant has completed the action specified in

4-14 his remedial agreement for the removal or remediation of hazardous

4-15 substances, the participant shall certify to the administrator that the

4-16 action has been completed according to the agreement. After the

4-17 administrator has verified the certification, he shall issue the participant

4-18 a certificate of completion.

4-19 2. A certificate of completion must:

4-20 (a) Contain the name of the participant and of any other person

4-21 relieved from liability by the certificate and the legal description of the

4-22 property to which it relates;

4-23 (b) Summarize the nature of the removal or remediation performed on

4-24 the property, and the nature of the relief provided by sections 2 to 23,

4-25 inclusive, of this act; and

4-26 (c) Be recorded by the administrator in the office of the county

4-27 recorder of the county where the real property is located, and indexed to

4-28 show its relation to that real property.

4-29 3. If the administrator does not issue a certificate of completion after

4-30 receiving the participant’s certification that the work has been completed,

4-31 he shall deliver to the participant, within 30 days after his receipt of the

4-32 certificate, a written explanation of the reasons why the certificate was

4-33 not issued.

4-34 Sec. 15. 1. Except as otherwise provided in section 16 of this act,

4-35 the holder of a certificate of completion issued by the administrator is not

4-36 a responsible party with respect to a release of a hazardous substance

4-37 occurring on the property to which the certificate relates before the

4-38 certificate was issued. The state may not maintain an action pursuant to

4-39 federal law or NRS 459.537 to recover costs from the holder with respect

4-40 to such a release.

4-41 2. The relief from liability provided by a certificate of completion

4-42 remains effective despite a subsequent change in state or federal law.

5-1 Sec. 16. The holder of a certificate of completion is not released

5-2 from liability:

5-3 1. If he obtained approval of his application, approval of his

5-4 remedial agreement or issuance of the certificate by means of fraud,

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

5-6 2. If the existence of the hazardous substance on the property was

5-7 not disclosed in his remedial agreement, whether or not he knew or

5-8 should have known of its existence;

5-9 3. With respect to a release of a hazardous substance caused by him

5-10 or his agent, unless the release is remedied before the certificate of

5-11 completion is issued and is included in the certificate of completion;

5-12 4. In a criminal prosecution or an action for damage to a natural

5-13 resource;

5-14 5. In an action for nuisance at common law, for trespass or for the

5-15 conduct of an abnormally dangerous activity; or

5-16 6. With respect to a use of the property for which the property is no

5-17 longer suitable after the removal or remediation has been carried out, as

5-18 identified pursuant to subparagraph (2) of paragraph (a) of subsection 2

5-19 of section 13 of this act.

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, pursuant to

6-27 an 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 pursuant to a program.

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

6-33 relief from liability pursuant to section 17 of this act, the seller may

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

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

6-36 substances pursuant to 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 an

7-6 imminent and substantial threat of harm to human health or the

7-7 environment.

7-8 3. An application, remedial agreement or certificate of completion is

7-9 not an admission of liability on the part of the applicant or participant,

7-10 but a termination of participation does not otherwise affect the rights of

7-11 the division.

7-12 Sec. 22. 1. A decision of the administrator to approve an

7-13 application or a remedial agreement or to issue a certificate of

7-14 completion is final and may not be reviewed.

7-15 2. If the administrator denies an application for any reason other

7-16 than incompleteness, disapproves a proposed remedial agreement, does

7-17 not issue a certificate of completion within the time allowed or terminates

7-18 the participation of a participant in a program, the applicant or

7-19 participant may apply to the commission to review the decision pursuant

7-20 to chapter 233B of NRS.

7-21 Sec. 22.5. The commission shall adopt such regulations as the

7-22 commission determines are necessary to carry out the provisions of

7-23 sections 2 to 23, inclusive, of this act. Regulations adopted pursuant to

7-24 this section:

7-25 1. Must include, without limitation, provisions relating to the:

7-26 (a) Duties and functions of consultants who are certified, or exempt

7-27 from the requirement of certification, as provided by NRS 459.500;

7-28 (b) Financial capability and responsibility required of a participant;

7-29 and

7-30 (c) Required form and content of and any fee required to be submitted

7-31 with an application, certificate or remedial agreement.

7-32 2. May include, without limitation, provisions relating to the

7-33 issuance of a temporary, interim or partial certificate of completion or

7-34 progress with respect to a remedial agreement.

7-35 Sec. 23. The administrator shall make a good faith effort to

7-36 negotiate with the Environmental Protection Agency to ensure that a

7-37 certificate of completion issued pursuant to sections 2 to 23, inclusive, of

7-38 this act will relieve a participant from liability to the United States to the

7-39 same extent as those sections provide relief from liability to this state.

7-40 Sec. 23.5. NRS 459.530 is hereby amended to read as follows:

7-41 459.530 1. All proceeds from agreements entered into pursuant to

7-43 act, all reimbursements and penalties recovered pursuant to NRS 459.537,

8-1 and all fees collected, all civil penalties imposed and all interest accrued

8-2 pursuant to NRS 459.400 to 459.600, inclusive, must be deposited with the

8-3 state treasurer for credit to the account for the management of hazardous

8-4 waste, which is hereby created in the state general fund. The money in the

8-5 account must be paid as other claims against the state are paid.

8-6 2. The state treasurer shall account separately for each of the fees

8-7 collected pursuant to NRS 459.512.

8-8 Sec. 24. NRS 459.537 is hereby amended to read as follows:

8-9 459.537 1. If the person responsible for a leak or spill of or an

8-43 attempt to contact him;

9-1 (2) Does not, within 2 hours after receiving notification of the

9-2 incident, make an oral or written commitment to clean and decontaminate

9-3 the affected area properly;

9-4 (3) Does not act upon the commitment within 24 hours after making

9-5 it;

9-6 (4) Does not clean and decontaminate the affected area properly; or

9-7 (5) Does not act immediately to clean and decontaminate the affected

9-8 area properly, if his inaction presents an imminent and substantial hazard to

9-9 human health, public safety or the environment.

9-10 (b) "Responding" means any efforts to mitigate, attempt to mitigate or

9-11 assist in the mitigation of the effects of a leak or spill of or an accident

9-12 involving hazardous waste, hazardous material or a regulated substance,

9-13 including, without limitation, efforts to:

9-14 (1) Contain and dispose of the hazardous waste, hazardous material or

9-15 regulated substance.

9-16 (2) Clean and decontaminate the area affected by the leak, spill or

9-17 accident.

9-18 (3) Investigate the occurrence of the leak, spill or accident.

9-19 Sec. 25. 1. This section and sections 1, 22.5 and 23 of this act

9-20 become effective upon passage and approval.

9-21 2. Sections 2 to 22, inclusive, 23.5 and 24 of this act become effective

9-22 on October 1, 1999.