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 (a) Listed, proposed for listing or eligible for listing on the National

1-15 Priorities List contained in Appendix B of Part 300 of Title 40 of the

1-16 Code of Federal Regulations; and

2-1 (b) Owned, managed or controlled by a person or governmental entity

2-2 subject to a pending investigation or ongoing enforcement action of the

2-3 Federal Government pursuant to the Federal Resource Conservation and

2-4 Recovery Act, 42 U.S.C. §§ 6901 et seq., or the Comprehensive

2-5 Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§

2-6 9601 et seq.;

2-7 2. Is not owned, managed or controlled by a person or governmental

2-8 entity subject to a pending investigation or ongoing enforcement action

2-9 of the division with respect to that real property; and

2-10 3. Contains the site or probable site of a release of a hazardous

2-11 substance.

2-12 Sec. 6. "Hazardous substance" means a substance or combination

2-13 of substances whose presence gives rise to liability or potential liability on

2-14 the part of an owner or operator pursuant to NRS 459.537 or 42 U.S.C. §

2-15 9607(a).

2-16 Sec. 7. "Participant" means a person whose application to

2-17 participate in the program has been approved by the administrator.

2-18 Sec. 8. "Program" means voluntary cleanup and relief from liability

2-19 pursuant to sections 2 to 23, inclusive, of this act.

2-20 Sec. 9. "Prospective purchaser" means a person who is not a

2-21 responsible party and who has entered into a contract, or holds an

2-22 option, to purchase an eligible property for its fair market value in a

2-23 transaction at arm’s length.

2-24 Sec. 10. "Remedial agreement" means an agreement between a

2-25 participant and the division specifying the action to be taken to remove or

2-26 remedy hazardous substances present on an eligible property.

2-27 Sec. 11. "Responsible party" means:

2-28 1. A current or former owner or operator of a site or facility who

2-29 caused or contributed to the release of a hazardous substance at the site

2-30 or facility; and

2-31 2. A generator or transporter of a hazardous substance who caused

2-32 or contributed to the release of the hazardous substance at a site or

2-33 facility.

2-34 Sec. 11.5. Real property located in this state that is listed, proposed

2-35 for listing or eligible for listing on the National Priorities List contained

2-36 in Appendix B of Part 300 of Title 40 of the Code of Federal Regulations

2-37 or that is owned, managed or controlled by a person or governmental

2-38 entity subject to a pending investigation or ongoing enforcement action

2-39 by the Federal Government pursuant to the Federal Resource

2-40 Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., or the

2-41 Comprehensive Environmental Response, Compensation, and Liability

2-42 Act, 42 U.S.C. §§ 9601 et seq., shall be deemed to be eligible property if:

3-1 1. The property satisfies the elements of the definition of eligible

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

3-3 2. The reason for which the property was listed or is proposed or

3-4 eligible for listing on the National Priorities List or for the investigation

3-5 or enforcement action by the Federal Government is unrelated to the

3-6 hazardous substance that a participant intends to remove from or

3-7 remediate on the property pursuant to a remedial agreement submitted

3-8 pursuant to section 13 of this act.

3-9 Sec. 12. 1. A responsible party with respect to an eligible property,

3-10 or a prospective purchaser of an eligible property may apply to

3-11 participate in the program. The application must be made to the

3-12 administrator in writing and must include:

3-13 (a) An environmental assessment of the property, including the

3-14 source, nature and location of all hazardous substances known to, or

3-15 reasonably believed by, the applicant to be located on the property;

3-16 (b) A proposed general plan for removal or remediation on the

3-17 property; and

3-18 (c) The application fee and any other information required pursuant

3-19 to the regulations adopted by the commission pursuant to section 22.5 of

3-20 this act.

3-21 2. The administrator shall approve or deny an application made

3-22 pursuant to subsection 1 within 60 days after its submission, unless for

3-23 good cause he extends the period for not more than an additional 30

3-24 days. Notice of an extension must be delivered to the applicant before the

3-25 expiration of the original period for processing the application.

3-26 3. If the administrator denies an application, he shall deliver to the

3-27 applicant, within 30 days after the denial, a written explanation of the

3-28 reasons for denial.

3-29 Sec. 13. 1. After an application is approved, the participant shall

3-30 submit a remedial agreement to the administrator for his approval.

3-31 2. The administrator shall approve a remedial agreement only if:

3-32 (a) The agreement:

3-33 (1) Provides for the recovery by the division of all direct and

3-34 indirect costs, in excess of the application fee, of overseeing and

3-35 supervising the removal or remediation of the hazardous substance or

3-36 substances on the property;

3-37 (2) Specifies the substance to be removed from or remediated on the

3-38 property, the actions to be taken and the standards to be met with respect

3-39 to removal or remediation, and the uses for which the property will not

3-40 be suitable after the removal or remediation is carried out; and

3-41 (3) Includes a grant to the administrator of an irrevocable easement

3-42 or right of entry onto the property to oversee and observe the work during

3-43 and after the removal or remediation;

4-1 (b) The removal or remediation of the hazardous substance or

4-2 substances will:

4-3 (1) Restore the property to the condition to which it would be

4-4 restored if the division caused action to be taken pursuant to NRS

4-5 459.537;

4-6 (2) Not cause, contribute to or worsen any release or threatened

4-7 release of a hazardous substance on the property;

4-8 (3) Adequately protect human health and the environment; and

4-9 (4) Comply with any applicable regulations adopted by the

4-10 commission pursuant to section 22.5 of this act; and

4-11 (c) The participant is financially capable of undertaking the removal

4-12 or remediation of the hazardous substance or substances.

4-13 3. If the participant is not the owner of the property, the

4-14 administrator shall not approve a remedial agreement unless the owner

4-15 first agrees to the terms of the agreement.

4-16 4. Before approving a remedial agreement, the administrator shall:

4-17 (a) Publish a notice and brief summary of the agreement in a

4-18 newspaper of general circulation in the county where the property is

4-19 located;

4-20 (b) Make reasonable efforts to provide personal notice to all

4-21 responsible parties known to him and to all owners and residents of

4-22 property within 500 yards of the outer boundary of the property on which

4-23 the work is to be performed;

4-24 (c) Provide 30 days for the submission of written comments; and

4-25 (d) Hold a public hearing in the county where the property is located.

4-26 5. If the administrator disapproves a proposed remedial agreement,

4-27 he shall deliver to the participant, within 30 days after the disapproval, a

4-28 written explanation of the reasons for the disapproval.

4-29 Sec. 14. 1. After a participant has completed the action specified in

4-30 his remedial agreement for the removal or remediation of hazardous

4-31 substances, the participant shall certify to the administrator that the

4-32 action has been completed according to the agreement. After the

4-33 administrator has verified the certification, he shall issue the participant

4-34 a certificate of completion.

4-35 2. A certificate of completion must:

4-36 (a) Contain the name of the participant and of any other person

4-37 relieved from liability by the certificate and the legal description of the

4-38 property to which it relates;

4-39 (b) Summarize the nature of the removal or remediation performed on

4-40 the property, and the nature of the relief provided by sections 2 to 23,

4-41 inclusive, of this act; and

5-1 (c) Be recorded by the administrator in the office of the county

5-2 recorder of the county where the real property is located, and indexed to

5-3 show its relation to that real property.

5-4 3. If the administrator does not issue a certificate of completion after

5-5 receiving the participant’s certification that the work has been completed,

5-6 he shall deliver to the participant, within 30 days after his receipt of the

5-7 certificate, a written explanation of the reasons why the certificate was

5-8 not issued.

5-9 Sec. 15. 1. Except as otherwise provided in section 16 of this act,

5-10 the holder of a certificate of completion issued by the administrator is not

5-11 a responsible party with respect to a release of a hazardous substance

5-12 occurring on the property to which the certificate relates before the

5-13 certificate was issued. The state may not maintain an action pursuant to

5-14 federal law or NRS 459.537 to recover costs from the holder with respect

5-15 to such a release.

5-16 2. The relief from liability provided by a certificate of completion

5-17 remains effective despite a subsequent change in state or federal law.

5-18 Sec. 16. The holder of a certificate of completion is not released

5-19 from liability:

5-20 1. If he obtained approval of his application, approval of his

5-21 remedial agreement or issuance of the certificate by means of fraud,

5-22 misrepresentation or a knowing failure to disclose material information;

5-23 2. If the existence of the hazardous substance on the property was

5-24 not disclosed in his remedial agreement, whether or not he knew or

5-25 should have known of its existence;

5-26 3. With respect to a release of a hazardous substance caused by him

5-27 or his agent, unless the release is remedied before the certificate of

5-28 completion is issued and is included in the certificate of completion;

5-29 4. In a criminal prosecution or an action for damage to a natural

5-30 resource;

5-31 5. In an action for nuisance at common law, for trespass or for the

5-32 conduct of an abnormally dangerous activity;

5-33 6. With respect to a use of the property for which the property is no

5-34 longer suitable after the removal or remediation has been carried out, as

5-35 identified pursuant to subparagraph (2) of paragraph (a) of subsection 2

5-36 of section 13 of this act; or

5-37 7. For a release of any hazardous substance not specified in the

5-38 remedial agreement.

5-39 Sec. 17. 1. The relief from liability provided by section 15 of this

5-40 act extends to another person who:

5-41 (a) Purchases or leases the property to which the certificate of

5-42 completion relates; or

6-1 (b) Acquires, merges with or purchases substantially all of the assets

6-2 of the holder of the certificate,

6-3 after the certificate is issued, if the other person is not otherwise a

6-4 responsible party. The other person is subject to any duties of the original

6-5 holder of the certificate under the remedial agreement or the certificate.

6-6 2. The relief provided to a subsequent owner or lessee continues even

6-7 if it is determined that the original holder of the certificate is not released

6-8 from liability because of a provision of section 16 of this act if:

6-9 (a) The subsequent owner or lessee purchased or leased the property

6-10 in good faith for its fair market value; and

6-11 (b) The actions of the original holder of the certificate cannot be

6-12 attributed to the subsequent owner or lessee under a provision of law

6-13 other than this chapter.

6-14 3. If the original holder of a certificate of completion is a prospective

6-15 purchaser, the relief from liability provided by section 15 of this act

6-16 extends to the person from whom he purchases the property if:

6-17 (a) The seller and purchaser so agree;

6-18 (b) The seller bears the expense of removal or remediation performed

6-19 on the property, directly or indirectly;

6-20 (c) The seller is a responsible party only because of his ownership of

6-21 the property; and

6-22 (d) The administrator approves the extension of relief and

6-23 incorporates it into the certificate of completion.

6-24 Sec. 18. 1. A person who, without participating in the management

6-25 of a parcel of real property, holds or is the beneficiary of evidence of title

6-26 to the property primarily to protect a security interest in the property is

6-27 not a responsible party with respect to a release of a hazardous substance

6-28 on the property if:

6-29 (a) The owner of the property is relieved from liability under sections

6-30 2 to 23, inclusive, of this act with respect to the release;

6-31 (b) The owner or holder of evidence of title did not cause the release;

6-32 and

6-33 (c) The owner or holder of evidence of title does not participate

6-34 actively in decisions concerning hazardous substances on the property.

6-35 2. A lender to a prospective purchaser who has filed an application

6-36 to participate in the program pursuant to section 12 of this act or a

6-37 lender who forecloses his security interest in property pursuant to NRS

6-38 40.430 to 40.450, inclusive, or 107.080 to 107.100, inclusive, and within a

6-39 reasonable period after the foreclosure, not to exceed 2 years, sells,

6-40 transfers or conveys the property to a prospective purchaser who has filed

6-41 an application to participate in the program pursuant to section 12 of this

6-42 act is not a responsible party solely as a result of:

6-43 (a) Foreclosing a security interest in the property; or

7-1 (b) Making a loan to the prospective purchaser if the loan:

7-2 (1) Is to be used for acquiring property or removing or remediating

7-3 hazardous substances on property; and

7-4 (2) Is secured by the property that is to be acquired or on which is

7-5 located the hazardous substances that are to be removed or remediated.

7-6 Sec. 19. A prospective purchaser is not a responsible party solely as

7-7 the result of:

7-8 1. Conducting an environmental assessment of real property;

7-9 2. Contracting to purchase, or acquiring an option to purchase, real

7-10 property;

7-11 3. Applying to participate in a program; or

7-12 4. Conducting or supervising removal or remediation of a hazardous

7-13 substance or substances, while exercising reasonable care, pursuant to

7-14 an approved remedial agreement.

7-15 Sec. 20. 1. The holder of a certificate of completion may maintain

7-16 an action against a responsible party to recover the holder’s costs of

7-17 performing removal or remediation of a hazardous substance or

7-18 substances pursuant to a program.

7-19 2. If the holder is a prospective purchaser and his seller qualifies for

7-20 relief from liability pursuant to section 17 of this act, the seller may

7-21 maintain an action against a responsible party to recover the seller’s

7-22 costs of performing removal or remediation of a hazardous substance or

7-23 substances pursuant to a program.

7-24 Sec. 21. 1. A participant may terminate his participation in a

7-25 program upon 30 days’ written notice to the administrator.

7-26 2. The administrator may terminate the participation of a participant

7-27 in a program only if:

7-28 (a) The participant, after a reasonable period, has not proposed and is

7-29 unlikely to be able to propose a remedial agreement that meets the

7-30 requirements of section 13 of this act;

7-31 (b) The participant fails materially to comply with the requirements of

7-32 the remedial agreement or sections 2 to 23, inclusive, of this act; or

7-33 (c) From information not known to the administrator when the

7-34 remedial agreement was approved, he determines that the removal or

7-35 remediation in progress or to be performed on the property poses an

7-36 imminent and substantial threat of harm to human health or the

7-37 environment.

7-38 3. An application, remedial agreement or certificate of completion is

7-39 not an admission of liability on the part of the applicant or participant,

7-40 but a termination of participation does not otherwise affect the rights of

7-41 the division.

8-1 Sec. 22. 1. A decision of the administrator to approve an

8-2 application or a remedial agreement or to issue a certificate of

8-3 completion is final and may not be reviewed.

8-4 2. If the administrator denies an application for any reason other

8-5 than incompleteness, disapproves a proposed remedial agreement, does

8-6 not issue a certificate of completion within the time allowed or terminates

8-7 the participation of a participant in a program, the applicant or

8-8 participant may apply to the commission to review the decision pursuant

8-9 to chapter 233B of NRS.

8-10 Sec. 22.5. The commission shall adopt such regulations as the

8-11 commission determines are necessary to carry out the provisions of

8-12 sections 2 to 23, inclusive, of this act. Regulations adopted pursuant to

8-13 this section:

8-14 1. Must include, without limitation, provisions relating to the:

8-15 (a) Duties and functions of consultants who are certified, or exempt

8-16 from the requirement of certification, as provided by NRS 459.500;

8-17 (b) Financial capability and responsibility required of a participant;

8-18 and

8-19 (c) Required form and content of and any fee required to be submitted

8-20 with an application, certificate or remedial agreement.

8-21 2. May include, without limitation, provisions relating to the

8-22 issuance of a temporary, interim or partial certificate of completion or

8-23 progress with respect to a remedial agreement.

8-24 Sec. 23. The administrator shall make a good faith effort to

8-25 negotiate with the Environmental Protection Agency to ensure that a

8-26 certificate of completion issued pursuant to sections 2 to 23, inclusive, of

8-27 this act will relieve a participant from liability to the United States to the

8-28 same extent as those sections provide relief from liability to this state.

8-29 Sec. 23.5. NRS 459.530 is hereby amended to read as follows:

8-30 459.530 1. All proceeds from agreements entered into pursuant to

8-39 collected pursuant to NRS 459.512.

8-40 Sec. 24. NRS 459.537 is hereby amended to read as follows:

8-41 459.537 1. If the person responsible for a leak or spill of or an

8-43 substance does not act promptly and appropriately to clean and

9-1 decontaminate the affected area properly, and if his inaction presents an

9-2 imminent and substantial hazard to human health, public safety or the

9-3 environment, money from the account for the management of hazardous

9-4 waste may be expended to pay the costs of:

9-5 (a) Responding to the leak, spill or accident;

9-6 (b) Coordinating the efforts of state, local and federal agencies

9-7 responding to the leak, spill or accident;

9-8 (c) Managing the cleaning and decontamination of an area for the

9-9 disposal of hazardous waste or the site of the leak, spill or accident;

9-10 (d) Removing or contracting for the removal of hazardous waste,

9-11 hazardous material or a regulated substance which presents an imminent

9-12 danger to human health, public safety or the environment; or

9-13 (e) Services rendered in responding to the leak, spill or accident, by

9-14 consultants certified pursuant to regulations adopted by the commission.

9-15 2. Except as otherwise provided in this subsection [,] or sections 2 to

9-16 23, inclusive, of this act, the director shall demand reimbursement of the

9-17 account for money expended pursuant to subsection 1 from any person who

9-18 is responsible for the accident, leak or spill, or who owns or controls the

9-19 hazardous waste, hazardous material or a regulated substance, or the area

9-20 used for the disposal of the waste, material or substance. Payment of the

9-21 reimbursement is due within 60 days after the person receives notice from

9-22 the director of the amount due. The provisions of this section do not apply

9-23 to a spill or leak of or an accident involving natural gas or liquefied

9-24 petroleum gas while it is under the responsibility of a public utility.

9-25 3. At the request of the director, the attorney general shall initiate

9-26 recovery by legal action of the amount of any unpaid reimbursement plus

9-27 interest at a rate determined pursuant to NRS 17.130 computed from the

9-28 date of the incident.

9-29 4. As used in this section:

9-30 (a) "Does not act promptly and appropriately" means that the person:

9-31 (1) Cannot be notified of the incident within 2 hours after the initial

9-32 attempt to contact him;

9-33 (2) Does not, within 2 hours after receiving notification of the

9-34 incident, make an oral or written commitment to clean and decontaminate

9-35 the affected area properly;

9-36 (3) Does not act upon the commitment within 24 hours after making

9-37 it;

9-38 (4) Does not clean and decontaminate the affected area properly; or

9-39 (5) Does not act immediately to clean and decontaminate the affected

9-40 area properly, if his inaction presents an imminent and substantial hazard to

9-41 human health, public safety or the environment.

9-42 (b) "Responding" means any efforts to mitigate, attempt to mitigate or

9-43 assist in the mitigation of the effects of a leak or spill of or an accident

10-1 involving hazardous waste, hazardous material or a regulated substance,

10-2 including, without limitation, efforts to:

10-3 (1) Contain and dispose of the hazardous waste, hazardous material or

10-4 regulated substance.

10-5 (2) Clean and decontaminate the area affected by the leak, spill or

10-6 accident.

10-7 (3) Investigate the occurrence of the leak, spill or accident.

10-8 Sec. 25. 1. This section and sections 1, 22.5 and 23 of this act

10-9 become effective upon passage and approval.

10-10 2. Sections 2 to 22, inclusive, 23.5 and 24 of this act become effective

10-11 on October 1, 1999.