MINUTES OF THE meeting
of the
ASSEMBLY Committee on Natural Resources, Agriculture, and Mining
Seventy-First Session
May 9, 2001
The Committee on Natural Resources, Agriculture, and Miningwas called to order at 1:30 p.m., on Wednesday, May 9, 2001. Chairman Marcia de Braga presided in Room 3142 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
Mr. Tom Collins, Vice Chairman
Mr. Douglas Bache
Mr. David Brown
Mr. John Carpenter
Mr. Jerry Claborn
Mr. David Humke
Mr. John J. Lee
Mr. John Marvel
Mr. Harry Mortenson
Mr. Roy Neighbors
Ms. Genie Ohrenschall
STAFF MEMBERS PRESENT:
Linda Eissmann, Committee Policy Analyst
June Rigsby, Committee Secretary
OTHERS PRESENT:
Helen Foley, Clark County District Health, Las Vegas
Chris Robinson, Air Quality Division, Clark County District Health
Phil Rosenquist, Assistant Director, Clark County Comprehensive Planning Terri Barber, Deputy Director, Southern Nevada Home Builders’ Association
Richard Wilkie, City of Henderson
Kami Dempsey, Las Vegas Chamber of Commerce
Peter Krueger, Nevada Independent Emission Control Stations
Lou Gradelli, Jiffy Smog
Brian Keraly, Smog Busters
Daryl Capurro, Nevada Motor Transport Association
Cheryl Blomstrom, Nevada Contractors’ Association
Roll was called and the hearing on S.B. 357 was opened.
Senate Bill 357: Authorizes board of county commissioners of certain larger counties, in certain circumstances, to impose additional fee for each form certifying emission control compliance and revises provisions governing disbursement of money from pollution control account. (BDR 40-1180)
Helen Foley, representing the Air Quality Division of the Clark County Health Department, commenced testimony in strong support of S.B. 357. The bill had been requested because of air quality issues in southern Nevada. The U.S. Environmental Protection Agency (EPA) had declared the area to be in nonattainment for carbon monoxide and PM-10.
Ms. Foley distributed a program development timeline (Exhibit C) that illustrated the expected milestones in the creation of the new air quality management agency, as recommended by the Environ study. The planning, implementation, and enforcement efforts depicted in the timeline were described as being essential to reach a base level of compliance. Ms. Foley explained S.B. 357 would enable Clark County to raise fees up to $6 for smog inspections. When the bill had been heard in the Senate, an alternative form of financing had been proposed. That fee was described as a clean air fee that would be charged at the time of vehicle registration. When it was determined that method was likely to be illegal, the funding request was revised to target the smog inspection fee.
On the subject of diesel vehicles, Ms. Foley explained on-road diesels were covered by the registration fee; however, off-road diesel vehicles were not. As such, S.B. 357 did not impact the on-road diesel vehicles. The off-road, nonagricultural vehicles would be charged an annual $6 fee by the local air quality agency for the county. That would be achieved through regulation, specifically through the application for dust permits (e.g., construction sites). In terms of justification for the funding request, Ms. Foley directed the committee to the timeline (Exhibit C) document. The time to implement a multitude of programs under the new agency was described as critical.
In January of the current year, Clark County commissioned a customer survey through InfoSearch International. That telephone survey of 768 residents revealed air quality to be the second most important issue. On the subject of willingness to pay for improvements, funding ranked second on the list of priorities. Ms. Foley judged the survey results to be representative of public sentiment on the issue of air quality in southern Nevada.
Ms. Foley explained the state implementation plan required by the EPA would be provided by Phil Rosenquist’s agency, Clark County Comprehensive Planning. The implementation and enforcement of that plan would be under the direction of Chris Robinson of the Air Quality Division of Clark County Health.
Assemblyman Mortenson asked why it was difficult to access the Clark County Web site, specifically the archives of air quality measurements. Chris Robinson offered to respond and explained she also had difficulty accessing the data. The Web site was currently undergoing upgrading to make it more user-friendly to the citizens.
Chairman de Braga requested clarification on proposed amendments. Ms. Foley interjected she had neglected to mention an important amendment. She called the committee’s attention to page 3 of Exhibit E entitled Amendments Proposed by Clark County Health District, Air Quality Division. Section 1(b) would authorize Clark County emission control stations to charge a 2 percent commission on smog inspection fees.
Chairman de Braga asked if that version of the bill (Exhibit E) had been passed by the Senate, to which Ms. Foley replied “yes.” She clarified by saying the committee was viewing an edited copy of the bill designed to illustrate changes to language. There were no changes on page 2. On page 3, the authorization of a 2 percent commission on fees was new language. The emission control stations would not only smog the vehicles, but would now collect that fee on behalf of Clark County. On the top of page 4, under item 8, was the language to capture the new requirements for off-road, nonagricultural diesel equipment.
Ms. Foley explained there was an issue that was adopted by the study committee but was not included in the final bill due to funding. That proposal, recommended by Carol Vilardo, was a requirement for Clark County to return to the legislature by the year 2009 for purposes of reporting on expenditures and progress. The bill would sunset by June of 2011.
Assemblyman Collins asked how the distinction would be made between agricultural and nonagricultural off-road diesel equipment. He illustrated his question with the example of a landscaping business working in a new housing subdivision. He asked the question be answered upon his return to the hearing room.
Assemblyman Humke voiced skepticism on the subject of sunset clauses. Inherently, they were of questionable value and, in his experience “the sun never set on any legislative matter.” If a sunset was adopted, the year of 2009 was too far out on the horizon, in his judgment. Chris Robinson, representing the Air Quality Division of the Clark County Health District, explained the logic in choosing that year. She called attention to the timeline (Exhibit C) and emphasized it only displayed new functions mandated by EPA. The entire task list was enormous, and the commitments for clean air issues were long-term by their very nature.
Chairman de Braga requested clarification on the amendment proposed by Senator Carlton (Exhibit F). Ms. Foley directed the Chairman’s attention to the front page of Exhibit F and the language “Make the provisions of subsection 1 of the proposed amendment relating to diesel-fueled vehicles mandatory if the county commission imposes the broad-based fee contained in S.B. 357. “
Chairman de Braga interjected it spelled out the exact amount that could not be exceeded and several other provisions. Ms. Foley clarified the most the county commission could impose would be $6. The language “heavy duty motor vehicle” was, in fact, “off-road” according to Ms. Foley. There was no smog program for on-road diesel vehicles and, therefore, no means by which to collect a fee. Senator Carlton’s amendment was designed to capture as much of the diesel market as legally possible.
Chairman de Braga corrected the witness and stated Section 1, subsection 1, D (Exhibit E) did not match the language of Senator Carlton’s language (Exhibit F) that included the word “diesel.” Ms. Foley explained, in D of subsection 1 of Section 1, the county was not allowed to smog on-road vehicles. There was no program to perform that function. Chairman de Braga asked if “off-road” was the equivalent to “unlicensed.” Ms. Foley stated off-road vehicles were “unregistered.”
Chairman de Braga restated her concern over the apparent difference in language between the bill and the amendments.
Assemblyman Neighbors asked if the witness knew the percentage of the air problem that could be attributed to big diesel trucks on Nevada highways. Ms. Robinson stated the intent was to capture the off-road diesel vehicles when the owner applied for a dust permit. A sticker would be issued for each of the off-road diesel vehicles at a construction site. Assemblyman Neighbors declared the situation to be a “double standard.”
Ms. Foley explained that Clark County had proposed an emission control program for on-road diesel vehicles; however, the problem was the technology was not adequate to perform smog checks. Assemblyman Neighbors asked about licensed, three-quarter-ton diesel pickups. Ms. Foley clarified if they were on-road diesel, they would not be captured by S.B. 357. Any increase in the vehicle registration fee would be deposited in the Highway Fund. As such, that was not an option to charge a fee for air quality management purposes.
Ms. Foley further explained the Senator Carlton amendment was similar to her amendment in that a fee would be charged for off-road diesel vehicle use. Money collected would be used to carry out the provisions of S.B. 357. Chairman de Braga summarized the language as “if the fee is imposed, the same fee has to be applied to each piece of off-road diesel equipment used for nonagricultural purposes.” Chairman de Braga voiced some concern over the definition of “nonagricultural purposes,” given the overlap of equipment use in many situations.
Ms. Foley expressed approval of the Carlton amendment. It would allow development of the program, and the program would apply to heavy-duty motor vehicles. Ms. Robinson interjected the wording “heavy-duty” could be easily confused with all vehicles, including on-road. Ms. Foley added that the Legislative Counsel Bureau would “iron out” the wording.
Assemblyman Mortenson requested clarification on why a sticker could not be sold to all diesel vehicles, including those labeled “on-road.“ Ms. Robinson explained there was no mechanism in place during the registration of a vehicle at the Department of Motor Vehicles (DMV). The off-road vehicles were contacted through the dust application permitting process.
Ms. Foley acknowledged the logic of charging a clean-air surcharge on all diesel vehicles at the time of DMV registration; however, all fees collected at that location must, by statute, be deposited in the Highway Fund.
Assemblyman Neighbors cited the apparent lack of equity between the treatment of on-road and off-road diesel vehicles. He asked how much money would be lost if the off-road diesel vehicles were removed from the S.B. 357. Ms. Robinson estimated the loss at $60,000. Ms. Foley commented if the committee could determine a mechanism to charge all diesel vehicles, she was open to suggestions.
Chairman de Braga asked if staffing had been determined for the newly restructured air quality agency. Ms. Robinson replied the intent was a merger between Clark County Comprehensive Planning and the Air Quality Management Division of the Clark County Health Department. All personnel who wanted to move to the new agency would be allowed to do so. Ms. Foley commented that Ms. Robinson was a likely choice to head the new agency. A document in table format (Exhibit G) displayed the costs and revenues associated with the five-year timeline for the newly created agency. It was distributed by the witness but not discussed.
Assemblyman Mortenson asked if it was possible to get a list from DMV of all registered diesel vehicles in Nevada and then to bill them directly from the Air Quality Division.
Phil Rosenquist, Assistant Director of the Clark County Comprehensive Planning Department, offered to respond. The interim study, authorized by S.B. 432 of the Seventieth Session, adopted a recommendation from the DMV that a diesel smog inspection program not be implemented. In their judgment, the current program of visual inspections on the roadside be continued and enhanced.
Assemblyman Mortenson repeated his question about direct billing of all registered diesel vehicles from a list. Mr. Rosenquist replied the list would be derived from a DMV database, and he suspected it would violate the statutes. Ms. Foley offered to check into that possibility.
Terri Barber, Deputy Director of the Southern Nevada Home Builders’ Association, presented a statement of support for S.B. 357 and the creation of a new air management agency.
Chairman de Braga asked the witness if she had read all of the amendments. Ms. Barber responded “yes.”
Richard Wilkie, representing the City of Henderson, asked to go on the record in support of S.B. 357 and the amendments proposed by the Clark County Health District.
Kami Dempsey, representing the Las Vegas Chamber of Commerce, presented a one-line statement in support of S.B. 357.
Peter Krueger, representing the Nevada Independent Emission Control Stations, distributed a handout (Exhibit H) and commenced testimony in support of S.B. 357. He called the committee’s attention to two amendments, one of which was presented in the materials from Clark County. The first referred to the 2 percent commission, which he felt was of critical importance. The second item was not included with the Clark County documents. It related to a separate charge and line item that was now included in the labor rate. He introduced two witnesses to explain the need for the legislation.
Lou Gradelli, representing Jiffy Smog, stated his support of S.B. 357 as amended. In defense of the 2 percent commission, Mr. Gradelli described it as a means to offset the costs incurred for fee collection services. The emission stations in Clark County would be collecting more than $6 million. Additionally, he estimated S.B. 357 would increase their inventory costs by 120 percent. There were added costs to purchase records from the Department of Motor Vehicles (DMV), as well as MCI communication costs. License taxes, based on gross sales, would also suffer a significant increase for emission station operators. More than one-third of his business was charged to credit cards, adding to the overhead connected to that method of payment. Mr. Gradelli summarized by saying the 2 percent commission would help offset all of those ancillary costs.
Chairman de Braga requested clarification of the MCI costs. Brian Keraly, representing Smog Busters, explained the MCI charge was incurred when his smog computer dialed the DMV database. The call was initiated at the beginning of the smog test and again at the end, for a total of $1.48 in telephone charges. A new contract had recently been signed between DMV and MCI that would raise the telephone fees on June 1. Mr. Keraly described the MCI charges as hidden in the $23 inspection fee charged to customers. He called attention to the bottom of page 3 of Exhibit H and recommended charging a pure labor expense (i.e., inspection fee) with no hidden costs, such as the MCI fees.
Chairman de Braga voiced concern over the overhead costs to reprogram the computers to include line item charges.
Mr. Gradelli explained the industry was in the process of investing in $5 million worth of new equipment. The software was still in the development stage, and as such, separate line items would not be a problem. Mr. Krueger emphasized the need for a pure labor line item on the bill presented to consumers.
Chairman de Braga asked if the DMV had been approached with that idea. Mr. Gradelli replied he had not; however, Mr. Krueger commented there was coordination with DMV on that issue. In defense of smog stations, Mr. Krueger stated, if Clark County raised the fee by $6, it would be a total of $11 charged to businesses upfront for the authorization to operate smog inspection stations. He envisioned a newly designed computer-generated invoice as listing individual charges, now embedded in the category of labor costs.
Daryl Capurro, representing the Nevada Motor Transport Association, commenced testimony and offered to clarify misconceptions regarding the issue of charging fees at the point of DMV registration. He cited constitutional language that set forth protection of Highway Trust Fund money and guaranteed its exclusive use for the building and maintenance of highways. As such, a fee added to vehicle registration could not legally be diverted to air quality programs.
Mr. Capurro reminded the committee that many interstate motor transport companies had the option to register their vehicles in a fee-friendly county or state. The impact of S.B. 357 on Clark County-based vehicles would create a less than equitable situation.
Regarding the off-road diesel requirements, Mr. Capurro viewed the language of the bill as raising issues of equal application. He urged the removal of all language regarding off-road diesel powered vehicles. The costs to administer and enforce would not be offset by the estimated $60,000 in revenues.
Mr. Capurro reminded the committee there was a heavy-duty truck emission-testing program in place. He concluded by saying he agreed with the merging of the two air quality management agencies in Clark County and urged the committee to fund the creation of the new agency as set forth by S.B. 357. He was opposed to charging a fee through the Department of Motor Vehicles.
Vice Chairman Collins asked if the issue was the $6 fee increase and if the argument was based upon the proration of registration law. He asked if a fee could be charged through other avenues as opposed to proration. Mr. Capurro explained the issue central to two cases before the Supreme Court was that all fees applied to interstate commerce had to be equitably prorated, without exception. In response to Assemblyman Collins, Mr. Capurro added that he was in favor of the line itemized smog inspection bill. He was in general agreement with Mr. Krueger’s amendments.
Assemblyman Collins asked if the fee charged on all nondiesel vehicles would be constitutional. Mr. Capurro replied in the affirmative and explained, in the case of car registration, the owner declared it to be based and primarily operated in Clark County. With commercial vehicles, it was much more complicated. A truck could be based in one county and be primarily used in another county. The controversy over “place of residence” versus “area of vehicle use” had been addressed in previous sessions, according to Assemblyman Collins.
Assemblyman Marvel asked the witness if he had discussed the diesel problem in the Senate hearing on S.B. 357. Mr. Capurro stated the process in that hearing was not as open, and he had not been advised of the subcommittee hearing. No discussion was invited. The subcommittee report was adopted; however, on the floor of the Senate a ruling was made it was unconstitutional. Mr. Capurro added the issue of proration was a problem with respect to registration. The off-road situation was difficult to pin down and did not warrant the attention.
In response to Assemblyman Marvel, Helen Foley defended the inclusion of off-road diesel vehicles in the language and the exclusion of on-road vehicles. It was not part of the original proposal; however, capturing the fee for on-road diesel would be impossible and that category was deleted from the language.
Daryl Capurro stated a lot of the controversy could have been cleared up in the Senate subcommittee; however, they were denied the opportunity to testify. The difficulties in collecting the fees would not be offset by the estimated $60,000 revenues charged to the off-road vehicles.
Helen Foley assured the committee there would be an update presented in 2006.
Assemblyman Neighbors agreed with Mr. Capurro and stated the cost to administer the collection of $60,000 in fees would exceed those revenues. It would be a very complex situation to administer and enforce. Ms. Foley explained the exclusion of on-road diesel trucks would not have been an issue if the fees could have been assessed at the time of registration at the DMV. The interstate trucks would have been prorated, and the remainder would have paid $6. The Senate asked her agency to suggest an alternative mechanism, and the dust permit became the only means by which to deal with the off-road category.
Assemblyman Neighbors voiced strong opposition to taxing only the off-road group. It would not be equitable. Ms. Foley emphasized the critical importance of S.B. 357, and, if the inclusion of the off-road diesel fee was hurting the passage of the bill, Ms. Foley stated that language could be deleted.
Assemblyman Mortenson made a brief statement of his agreement with Assemblyman Neighbors.
Cheryl Blomstrom, representing the Nevada Contractors’ Association, reiterated the concerns of previous witnesses and declared there would be unequal application of the law. Enforcement efforts would be costly and difficult.
Chairman de Braga closed the hearing on S.B. 357 (Exhibit I) and opened the hearing on S.B. 533.
Senate Bill 533: Authorizes control officer of local air pollution control board to request initiation of certain proceedings regarding enforcement of certain laws pertaining to control of air pollution. (BDR 40-1296)
Helen Foley, representing the Air Quality Division of the Clark County Health District Health, commenced testimony in support of S.B. 533. Simply stated, the EPA would approve the Title V air quality program if Clark County was granted criminal enforcement authority. The existing statute had authorized only the Nevada Division of Conservation and Natural Resources with that injunctive relief ability.
Assemblyman Marvel commented on the straightforward approach of Ms. Foley and agreed with the goal of local, nonfederal control of air quality programs.
Assemblyman Carpenter voiced pessimism over the ability to reach the county district attorney. He added, if the district attorney was involved, it suggested a fiscal impact to local government. Ms. Foley agreed that there would be costs associated with criminal prosecution; however, the financial consequences of not being in compliance with Title V would invite costly sanctions and would have severe consequences.
Assemblyman Brown requested clarification on whether the prosecution would be criminal or civil. Chris Robinson stated it would be criminal enforcement. Interim approval from the EPA was due to expire in December, and the EPA was threatening to take over air quality management in Clark County. Assemblyman Brown asked where the federal mandate was contained. Ms. Robinson replied it was under 40 CFR, Part 70.11. In response to his question on penalties, Ms. Robinson explained the criminal fines would be not less than $10,000 per day.
Assemblyman Marvel summarized the issue as one of primacy and the need to maintain local, nonfederal control.
Chairman de Braga asked about a situation in which the air control officer requested prosecution from the district attorney (DA) and the DA refused to act. Ms. Foley stated her agency would approach their director and request that he or she bypass the DA and deal with the Attorney General. The bill would give them that direct line of authority to the District Attorney.
Assemblyman Collins requested clarification on whether the authority would be criminal or civil. Ms. Robinson replied it would be criminal authority.
Chairman de Braga closed the hearing on S.B. 533. She announced the air quality bills would be scheduled for a separate work session. Chairman de Braga stated her preference was to return to the original version of S.B. 357. The goal was to give Clark County the authority it needed in their air quality management programs; however, it was essential to encourage Clark County to develop a plan that incorporated long-range goals and timeframes. A condition would be for Clark County to report back in 2003.
Assemblyman Collins asked if the proposed amendments had been judged to be friendly. Chairman de Braga declared that the goal was to grant Clark County the authority they needed using the simplest language possible.
Helen Foley offered to clarify some points on the bill dealing with the emission reduction credits. Chairman de Braga replied that was one issue; however, she was asking the committee to study the two sets of amendments that had been discussed at the current meeting. Ms. Foley stated it was up to the committee to judge the merits of the off-road vehicle tax. She emphasized the original bill only requested a $3 fee, designed to reach the current level of compliance. The other $3 would help create the new agency. All of the funding was removed from the new agency bill. She emphasized the entire $6 was essential to the functioning of the new agency.
Linda Eissmann, Committee Policy Analyst, distributed (Exhibit I) and commenced the work session on S.B. 467.
Senate Bill 467: Requires board of wildlife commissioners to establish maximum number of deer and antelope tags which may be issued annually as compensation for damage to private property. (BDR 45-1224)
Ms. Eissmann stated there were no amendments proposed at the original hearing; however, concerns were voiced over the reduction of the tags available to the public. There was also testimony that the program had been very successful, and the agriculture, wildlife, and sportsmen communities supported the measure.
Chairman de Braga clarified there was a proposed amendment that referred to “shall by regulation establish a maximum number of tags which may be issued annually by the division pursuant to the section based on the total number of deer and antelope tags authorized by for issuance annually throughout the state, up to 1.5 percent.”
Assemblyman Claborn asked to make a motion to do pass with a couple of exceptions. He called attention to Section 1, subsection 6 and requested the addition of the words “not to exceed 1.5 percent of tags.” Assemblyman Carpenter offered to second the motion with an amendment being to Section 1, subsection 6, item A, adding the language “not to exceed 1.5 percent of the total deer and antelope tags authorized for issuance annually.”
Assemblyman Marvel asked what percentage the 200 tags represented. Chairman de Braga replied they constituted less than 1 percent of the total. The difference in compensation tags would be an increase from 200 to 320.
Assemblyman Carpenter clarified by stating there were approximately 24,000 deer tags and 1.5 percent would increase the tags to 360. The total number of antelope tags was 1,500, making that increase to 23 compensation tags. As such, the amended bill would result in a significant increase in tags. Chairman de Braga explained the Wildlife Commission indicated it would hold the number of compensation tags at 1.25 percent.
ASSEMBLYMAN CLABORN MOVED TO AMEND AND DO PASS
S.B. 467.
ASSEMBLYMAN CARPENTER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY BY ALL PRESENT.
Linda Eissmann, Committee Policy Analyst, briefly presented S.J.R. 1, a resolution first heard on April 23.
Senate Joint Resolution 1: Expresses support of Nevada Legislature for amendment to Federal Land Policy and Management Act of 1976 to require identification, mapping and recognition of certain rights of way across land administered by Federal Government. (BDR R-1039)
ASSEMBLYMAN HUMKE MOVED TO DO PASS S.J.R. 1.
ASSEMBLYMAN CARPENTER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY BY ALL PRESENT.
The meeting was adjourned at 3:23 p.m.
RESPECTFULLY SUBMITTED:
June Rigsby
Committee Secretary
APPROVED BY:
Assemblywoman Marcia de Braga, Chairman
DATE: