USA Statutes : nevada
Title : Title 40 - PUBLIC HEALTH AND SAFETY
Chapter : CHAPTER 445C - ENVIRONMENTAL REQUIREMENTS
As used in this chapter, unless the
context otherwise requires, the words and terms defined in NRS 445C.020
to 445C.060 , inclusive, have the meanings ascribed to
them in those sections.
(Added to NRS by 1997, 1074)
“Environmental audit”
means an examination of the materials or practices at a regulated
facility that is conducted by a regulated person or an agent of a
regulated person and that is specifically designed to:
1. Produce systematic, documented and objective results;
2. Identify and prevent noncompliance with any environmental
requirement; and
3. Improve compliance with such a requirement.
(Added to NRS by 1997, 1074)
“Environmental
requirement” means a requirement contained in NRS 444.440 to 444.645 ,
inclusive, 445A.300 to 445A.730
, inclusive, 445B.100 to 445B.640 , inclusive, 459.400 to 459.600 ,
inclusive, 459.700 to 459.856 , inclusive, or 519A.010 to 519A.280 , inclusive, or in a regulation adopted
pursuant to any of those statutes.
(Added to NRS by 1997, 1074)
“Regulated facility”
means an area, building, tank or other facility that is subject to an
environmental requirement.
(Added to NRS by 1997, 1074)
“Regulated person” means
the owner or operator of a regulated facility.
(Added to NRS by 1997, 1075)
“Regulatory agency”
means:
1. The State Environmental Commission;
2. The State Department of Conservation and Natural Resources or
the Division of Environmental Protection of that Department;
3. A district board of health acting as a solid waste management
authority pursuant to NRS 444.440 to
444.620 , inclusive; or
4. A district board of health, county board of health or board of
county commissioners administering a program for the control of air
pollution pursuant to paragraph (a) of subsection 1 of NRS 445B.500
.
(Added to NRS by 1997, 1075)
1. Except as otherwise provided in subsection 3, a court that is
determining the appropriate criminal penalty to impose against a
regulated person who is convicted for a violation of an environmental
requirement shall consider, in mitigation of the penalty, whether:
(a) An environmental audit was conducted pursuant to a written
agreement with the appropriate regulatory agency and the agreement
prescribed the:
(1) Scope, methods and schedule for conducting the audit;
(2) Manner in which a violation of an environmental
requirement must be reported to the regulatory agency, including, but not
limited to, the number of days after the discovery of a violation that
the regulated person must report the violation to the regulatory agency;
and
(3) Period within which such a violation must be corrected;
(b) The regulated person voluntarily disclosed the results of the
environmental audit to the appropriate regulatory agency in accordance
with the requirements of the written agreement;
(c) The regulatory agency discovered the violation of the
environmental requirement as a result of the voluntary disclosure in the
environmental audit and before:
(1) The occurrence of any inspection or investigation of the
regulated facility by a regulatory agency or other governmental entity; or
(2) The commencement of an administrative proceeding or a
civil or criminal action against the regulated person for the violation;
(d) The regulated person or regulated facility has not been issued
a citation for a violation of the environmental requirement in the
immediately preceding 3 years;
(e) The regulated person did not obtain an actual economic benefit
or advantage as a result of the violation; and
(f) The regulated person entered into an enforceable agreement with
the appropriate regulatory agency to:
(1) Comply, as soon as practicable after the violation, with
the environmental requirement;
(2) Remedy any damage or other harm caused by the violation;
and
(3) Take action to prevent a recurrence of the violation.
2. A written agreement that prescribes the scope, methods and
schedule for conducting an environmental audit may be reasonably modified
if the regulated person and the regulatory agency specifically agree to
the modification.
3. If a federal statute or regulation provides for the imposition
of a specific penalty for a violation of an environmental requirement, a
voluntary disclosure that complies with the provisions of subsection 1
is, to the extent permitted under that statute or regulation, a
mitigating factor to be considered by the court when determining the
penalty for the violation.
4. The mitigation of a criminal penalty pursuant to subsection 1
does not limit the authority of a regulatory agency to order a regulated
person to comply with an environmental requirement whose violation it
discovered because the regulated person voluntarily disclosed the results
of an environmental audit.
(Added to NRS by 1997, 1075)
1. Except as otherwise provided in NRS 445C.090 , a regulated person is presumed not to be
liable for an administrative or civil penalty for a violation of an
environmental requirement if:
(a) The regulated person conducted an environmental audit pursuant
to a written agreement with the appropriate regulatory agency and the
agreement prescribed the:
(1) Scope, methods and schedule for conducting the audit; and
(2) Manner in which a violation of an environmental
requirement must be reported to the regulatory agency, including, but not
limited to, the number of days after the discovery of a violation that
the regulated person must report the violation to the regulatory agency;
(b) The regulated person voluntarily disclosed the results of the
environmental audit to the appropriate regulatory agency in accordance
with the requirements of the written agreement;
(c) The regulated person or regulated facility has not been issued
a citation for a violation of the environmental requirement in the
immediately preceding 3 years;
(d) The regulated person entered into an enforceable agreement with
the appropriate regulatory agency to:
(1) Comply, as soon as practicable after the violation, with
the environmental requirement;
(2) Remedy any damage or other harm caused by the violation;
and
(3) Take action to prevent a recurrence of the violation; and
(e) The environmental requirement that was violated is not a
requirement for which the regulated person or regulatory facility was
specifically required to comply pursuant to a judicial or administrative
order or consent agreement.
2. A written agreement that prescribes the scope, methods and
schedule for conducting an environmental audit may be reasonably modified
if the regulated person and the regulatory agency specifically agree to
the modification.
3. If a federal statute or regulation provides for the imposition
of a penalty for a violation of an environmental requirement, the
voluntary disclosure is, to the extent permitted under the statute or
regulation, a mitigating factor in determining the amount of the penalty
for the violation.
4. The presumption against administrative or civil liability does
not limit the authority of a regulatory agency to order a regulated
person to comply with an environmental requirement whose violation it
discovered because the regulated person voluntarily disclosed the results
of an environmental audit.
(Added to NRS by 1997, 1076)
The
presumption against administrative or civil liability set forth in NRS
445C.080 is rebutted to the extent it
is established that:
1. The violation of an environmental requirement was committed
willfully or with gross negligence by the regulated person;
2. The regulated person identified and disclosed the violation of
an environmental requirement in an environmental audit after the
commencement of:
(a) An independent inspection or investigation of the regulated
facility by a regulatory agency or other governmental entity;
(b) An administrative proceeding against the regulated person for
the violation; or
(c) A civil or criminal action against the regulated person for the
violation;
3. The violation resulted in serious actual harm or presented an
imminent or substantial danger to the public health or the environment;
4. The environmental audit was conducted for a fraudulent purpose;
5. The regulated person obtained a significant economic benefit or
advantage as a result of the violation; or
6. The regulated person conducted a previous environmental audit
that disclosed the violation and he intentionally failed to report that
violation to the appropriate regulatory agency.
(Added to NRS by 1997, 1077)
In an administrative or civil proceeding for a
violation of an environmental requirement:
1. A regulated person who claims to have made a voluntary
examination and disclosure pursuant to an audit agreement has the burden
of establishing prima facie that the disclosure met the requirements of
subsection 1 of NRS 445C.080 .
2. A regulatory agency has the burden of rebutting the presumption
against liability by a preponderance of the evidence.
(Added to NRS by 1997, 1077)
1. Except as otherwise provided in this section, an environmental
audit conducted pursuant to the provisions of this chapter shall be
deemed privileged and is not admissible in an administrative proceeding
or civil action against the regulated person who conducted the audit or
the regulated facility which is owned or operated by the regulated person.
2. The privilege provided by subsection 1 does not apply if:
(a) A regulatory agency requests the admission of the results of an
environmental audit at an administrative proceeding or civil action
commenced by the regulatory agency;
(b) The regulated person expressly waives the privilege; or
(c) A court or administrative hearing officer determines in camera
that the presumption against administrative or civil liability is
rebutted pursuant to NRS 445C.090 .
3. For the purposes of paragraph (b) of subsection 2, a regulated
person does not waive the privilege if he voluntarily discloses, pursuant
to NRS 445C.010 to 445C.120 , inclusive, the results of an environmental
audit or a violation of an environmental requirement discovered as a
result of an environmental audit to a regulatory agency.
4. This section does not prohibit a person or entity from:
(a) Obtaining information concerning a violation of an
environmental requirement from a source independent of an environmental
audit.
(b) Commencing an administrative proceeding or civil or criminal
action against a regulated person or a regulated facility which is owned
or operated by a regulated person based upon information that was
obtained from a source independent of an environmental audit.
(c) Intervening in a proceeding or action filed against a regulated
person or regulated facility if the intervention is specifically
authorized by statute or regulation.
(Added to NRS by 1997, 1077)
1. A regulatory agency may adopt regulations to carry out the
provisions of NRS 445C.010 to
445C.120 , inclusive.
2. The fact that a regulated person does not conduct an
environmental audit pursuant to the provisions of NRS 445C.010 to 445C.120 , inclusive, must not be considered by a
court or administrative hearing officer in determining whether to impose
administrative, civil or criminal liability for a violation of an
environmental requirement by the regulated person.
(Added to NRS by 1997, 1078)
