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4.0 transitional!LEGISLATIVE BILL 374
Introduced by Preister, 5; Beutler, 28; Bromm, 23; Cudaback, 36;
Dierks, 40; Hartnett, 45; Hilgert, 7; Janssen, 15;
Landis, 46; Robinson, 16; Schimek, 27; Schmitt, 41;
Stuhr, 24; Tyson, 19; Vrtiska, 1; Wickersham, 49
Read first time January 15, 1997
Committee:
A BILL
1 FOR AN ACT relating to hazardous substances; to adopt the Nebraska
2 Emergency Planning and Community Right to Know Act; and
3 to provide severability.
4 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Sections 1 to 53 of this act shall be known
2 and may be cited as the Nebraska Emergency Planning and Community
3 Right to Know Act.
4 Sec. 2. (1) It is the intent of the Legislature to adopt
5 the Nebraska Emergency Planning and Community Right to Know Act
6 pursuant to Title III of the Superfund Amendments and
7 Reauthorization Act of 1986, as amended.
8 (2) The Legislature finds that the release of hazardous
9 and toxic chemicals threatens the health and safety of the public
10 and the environment. The Legislature further finds that increased
11 public knowledge and access to information on the presence of
12 hazardous and toxic chemicals in communities enables the public to
13 work with facilities, communities, state and federal agencies, and
14 governmental bodies to improve chemical safety and protect the
15 health and safety of the public and the environment. The
16 Legislature further finds that the community's right to know is
17 essential in protecting the health and safety of the public and the
18 environment. The Legislature further finds that emergency planning
19 and notification requirements assist the state and local
20 communities in planning for and responding to a release of
21 extremely hazardous substances.
22 (3) It is the intent of the Legislature that all state
23 agencies involved in emergency release notification, reporting,
24 planning, training, response, and preparedness will coordinate and
25 collaborate in carrying out the purposes of the Nebraska Emergency
26 Planning and Community Right to Know Act and may, to the extent
27 possible, share resources and funding from all sources.
28 Sec. 3. For purposes of the Nebraska Emergency Planning
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1 and Community Right to Know Act, the definitions found in sections
2 4 to 19 of this act apply.
3 Sec. 4. Administrator means the Administrator of the
4 United States Environmental Protection Agency.
5 Sec. 5. Commission means the State Emergency Response
6 Commission.
7 Sec. 6. Director means the Director of Environmental
8 Quality.
9 Sec. 7. Environment includes water, air, and land and
10 the interrelationship which exists among and between water, air,
11 and land and all living things.
12 Sec. 8. Extremely hazardous substance means a substance
13 which meets the threshold requirements identified on the List of
14 Extremely Hazardous Substances under 40 C.F.R. 355, Appendices A
15 and B.
16 Sec. 9. Facility means the buildings, equipment,
17 structures, and other stationary items located on a single site or
18 on contiguous or adjacent sites and owned or operated by the same
19 person or by any person which controls, is controlled by, or is
20 under common control with such person.
21 Sec. 10. Governing body means the governing body of a
22 village, city, or county.
23 Sec. 11. Hazardous chemical has the same meaning as in
24 29 C.F.R. 1910.1200(c).
25 Sec. 12. Hazardous substance has the same meaning as in
26 40 C.F.R. Part 322, Table 302.4.
27 Sec. 13. Inventory form means an emergency and hazardous
28 chemical inventory form required to be prepared by an owner or
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1 operator of any facility required to prepare or have available a
2 material safety data sheet for a hazardous chemical under the
3 Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq.
4 Sec. 14. List of chemicals includes each of the
5 following:
6 (1) A list of the hazardous chemicals for which a
7 material safety data sheet is required under the Occupational
8 Safety and Health Act of 1970, 29 U.S.C. 651 et seq., and
9 regulations promulgated under the act, grouped in categories of
10 health and physical hazards as set forth under the act and
11 regulations promulgated under the act or in such other categories
12 as prescribed under section 311 of Title III;
13 (2) The chemical name or the common name of each such
14 chemical as provided on the material safety data sheet; and
15 (3) Any hazardous component of each such chemical as
16 provided on the material safety data sheet.
17 Sec. 15. Material safety data sheet means the sheet
18 required to be developed under 29 C.F.R. 1910.1200(g).
19 Sec. 16. Release means to spill, leak, pump, pour, emit,
20 empty, discharge, inject, escape, leach, dump, or dispose any
21 hazardous chemical, extremely hazardous substance, or toxic
22 chemical into the environment and includes the abandonment or
23 discarding of barrels, containers, and other closed receptacles
24 containing any such chemical or substance.
25 Sec. 17. State Administrator means the director of the
26 Nebraska Emergency Management Agency.
27 Sec. 18. Title III means the Emergency Planning and
28 Community Right to Know Act pursuant to Title III of the Superfund
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1 Amendments and Reauthorization Act of 1986, as amended.
2 Sec. 19. Toxic chemical means a substance on the list in
3 Committee Print Number 99-169, as amended, of the Senate Committee
4 on Environment and Public Works, titled "Toxic Chemicals Subject to
5 Section 313 of the Emergency Planning and Community Right-To-Know
6 Act of 1986", including any revised version as may be made pursuant
7 to section 312 of Title III.
8 Sec. 20. (1) The director of the Nebraska Emergency
9 Management Agency shall serve as the State Administrator of the
10 Nebraska Emergency Planning and Community Right to Know Act. The
11 State Emergency Response Commission is created and shall be a part
12 of the Nebraska Emergency Management Agency for administrative
13 purposes. The membership of the commission shall include the
14 Director of Environmental Quality, the Director of Health and Human
15 Services Regulation and Licensure, the Director-State Engineer, the
16 Superintendent of Law Enforcement and Public Safety, the State Fire
17 Marshal, the director of the Nebraska Emergency Management Agency,
18 two elected officials or employees of municipal or county
19 government, and one citizen member to represent each of the
20 following interest groups: Firefighters, public or community
21 health, environmental protection, labor, school district, small
22 business, agricultural business, chemical industry, highway
23 transportation, and rail transportation. The Governor shall
24 appoint the municipal or county government officials or employees
25 and the citizen members with the approval of the Legislature. The
26 appointments shall be made to represent the three congressional
27 districts as equally as possible.
28 (2) The members appointed by the governor shall be
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1 appointed for terms of four years, except that of the first citizen
2 members appointed, three members shall serve for one-year terms,
3 three members shall serve for two-year terms, and two members shall
4 serve for three-year terms, as designated at the time of
5 appointment.
6 (3) A vacancy on the commission shall exist in the event
7 of the death, disability, or resignation of a member. Any member
8 appointed to fill a vacancy occurring prior to the expiration of
9 the term for which his or her predecessor was appointed shall be
10 appointed by the governor for the remainder of such term.
11 Sec. 21. (1) The commission shall annually elect a
12 chairperson from among its citizen members. The commission shall
13 meet at least twice each year and may meet more often at the call
14 of the chairperson or at the request of any three members.
15 (2) All members shall be reimbursed for their actual and
16 necessary expenses as provided in sections 81-1174 to 81-1177.
17 Sec. 22. (1) The commission shall:
18 (a) Appoint local emergency planning committees pursuant
19 to section 25 of this act;
20 (b) Supervise and coordinate the activities of the local
21 emergency planning committees;
22 (c) Establish a system to certify committee compliance;
23 and
24 (d) Oversee compliance with the requirements of the
25 Nebraska Emergency Planning and Community Right to Know Act.
26 (2) The commission shall designate each county, or where
27 appropriate, multiple counties as emergency planning districts in
28 order to facilitate preparation and implementation of emergency
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1 plans.
2 Sec. 23. (1) The Nebraska Emergency Management Agency
3 shall ensure compliance with emergency planning and training under
4 section 305 of Title III and shall oversee and distribute all funds
5 received under section 305 of Title III and section 24 of this act.
6 (2) The Department of Environmental Quality shall ensure
7 compliance and enforcement of matters relating to emergency
8 notification, facility reporting requirements, and public
9 availability of documents. The director or his or her designee
10 shall serve as coordinator for information.
11 Sec. 24. (1) There is hereby created the Nebraska
12 Emergency Planning and Community Right to Know Cash Fund. The fund
13 may receive gifts, bequests, grants, fees, or other contributions
14 or donations from public or private entities. The fund shall be
15 used to carry out the purposes of the Nebraska Emergency Planning
16 and Community Right to Know Act, including:
17 (a) The funding of specific projects as approved by the
18 commission; and
19 (b) The payment of expenses incurred by the commission to
20 administer the fund. The commission shall adopt and promulgate
21 rules and regulations governing allocations from the fund and shall
22 publish guidelines regarding allocations from the fund. Any money
23 in the fund available for investment shall be invested by the state
24 investment officer pursuant to the Nebraska Capital Expansion Act
25 and the Nebraska State Funds Investment Act.
26 (2) Entities receiving allocations from the Nebraska
27 Emergency Planning and Community Right to Know Cash Fund shall
28 expend the allocation in a manner expressly approved by the
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1 commission. If allocations from the fund are used for purposes
2 other than those approved by the commission, the commission may
3 recover by appropriate legal means any funds spent inconsistent
4 with the terms of the allocation. Any recovered funds shall be
5 deposited in the fund.
6 Sec. 25. The commission shall appoint the members of
7 each local emergency planning committee for each emergency planning
8 district established after the effective date of this act. Only
9 one local emergency planning committee shall be established in each
10 district. To the extent possible, each committee established prior
11 to, on, or after the effective date of this act shall include at a
12 minimum a representative from each of the following interest
13 groups: State and local elected officials, public health, local
14 environmental protection, hospitals, firefighters, emergency
15 responders, law enforcement, transportation, broadcast and print
16 media, neighborhood and community organizations, and owners and
17 operators of facilities which are subject to the requirements of
18 the Nebraska Emergency Planning and Community Right to Know Act.
19 The committee members shall be appointed for terms of two years,
20 except that of the initial appointees, approximately one-half of
21 the members shall serve for terms of one year as designated at the
22 time of appointment. A vacancy on a committee shall exist in the
23 event of the death, disability, or resignation of a member. Any
24 member appointed to fill a vacancy occurring prior to the
25 expiration of the term for which his or her predecessor was
26 appointed shall be appointed for the remainder of such term.
27 Sec. 26. Each local emergency planning committee shall
28 annually elect a chairperson. Each committee shall meet at least
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1 annually and may meet more often at the call of the chairperson or
2 at the request of any three members.
3 Sec. 27. (1) Each local emergency planning committee
4 shall:
5 (a) Establish rules governing the functioning of the
6 committee. The rules shall include provisions for public
7 notification of committee activities, public meetings to discuss
8 the emergency plan required under subdivision (c) of this
9 subsection, public comments, response to such comments by the
10 committee, and distribution of the emergency plan;
11 (b) Establish procedures for receiving and processing
12 requests from the public for information required to be provided
13 under the Nebraska Emergency Planning and Community Right to Know
14 Act. The procedures shall include the designation of an official
15 to serve as coordinator for information;
16 (c) Complete preparation of an emergency plan in
17 accordance with the act not later than January 1, 1998. The
18 committee shall review the plan once a year beginning March 1,
19 1999, and each March 1 thereafter, or more frequently as changed
20 circumstances in the community or at any facility may require; and
21 (d) Evaluate the need for resources necessary to develop,
22 implement, and exercise the emergency plan and make recommendations
23 with respect to additional resources that may be required and the
24 means for providing such additional resources.
25 (2) Each local emergency planning committee may receive
26 gifts, bequests, grants, fees, or other contributions or donations
27 from public or private sources to carry out its duties and the
28 purposes of the act, including, but not limited to, administrative
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1 costs and reimbursement to committee members for their actual and
2 necessary travel expenses.
3 Sec. 28. (1) The owner or operator of each facility in
4 which an extremely hazardous substance exceeding threshold planning
5 quantities is present shall notify the commission that such
6 facility is subject to the Nebraska Emergency Planning and
7 Community Right to Know Act within sixty days after the effective
8 date of this act and shall notify the commission and the local
9 emergency planning committee of the emergency planning district in
10 which the facility is located that such facility is subject to the
11 act within sixty days after an extremely hazardous substance first
12 becomes present at such facility in excess of the threshold
13 planning quantity established for such substance. If there is a
14 revision of the definition of extremely hazardous substances and
15 the facility has present a substance included in the revised
16 definition in excess of the threshold planning quantity established
17 for such substance, the owner or operator of the facility shall
18 notify the commission and the committee of the district in which
19 the facility is located within sixty days after such revision that
20 such facility is subject to the act.
21 (2) The commission shall notify the director and the
22 State Administrator of facilities subject to the act. The
23 notification shall include:
24 (a) Each notification received from a facility under
25 subsection (1) of this section; and
26 (b) Each facility designated by the commission under
27 subsection (3) of this section.
28 (3) For purposes of emergency planning, the commission
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1 may designate additional facilities which are subject to the act if
2 such designation is made after public notice and opportunity for
3 comment. The commission shall notify the facility concerned of any
4 designation under this subsection.
5 Sec. 29. Within thirty days after the establishment of a
6 committee for the emergency planning district in which a reporting
7 facility is located, the owner or operator of the facility shall
8 provide to the committee the name of a facility representative who
9 will participate in the emergency planning process as a facility
10 emergency coordinator. The owner or operator of the facility shall
11 promptly inform the committee of any relevant changes occurring at
12 the facility as changes occur or are expected to occur. Upon
13 request from the committee, the owner or operator of the facility
14 shall promptly provide information to the committee which is
15 necessary for developing and implementing the emergency plan.
16 Sec. 30. Each emergency plan as required in subdivision
17 (1)(c) of section 27 of this act shall include, but not be limited
18 to, the following:
19 (1) Identification of facilities containing an extremely
20 hazardous substance in an amount which exceeds the threshold
21 planning quantity established for such substance that are within
22 the emergency planning district, identification of routes likely to
23 be used for the transportation of extremely hazardous substances,
24 and identification of additional facilities contributing or
25 subjected to additional risk due to their proximity to facilities
26 subject to the requirements of this section;
27 (2) Methods and procedures to be followed by facility
28 owners and operators and local emergency response and medical
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1 personnel to respond to any release of extremely hazardous
2 substances;
3 (3) Designation of a community emergency coordinator and
4 identification of facility emergency coordinators who will make
5 determinations necessary to implement the plan;
6 (4) Procedures providing reliable, effective, and timely
7 notification by the facility emergency coordinators and the
8 community emergency coordinator to persons designated in the
9 emergency plan and to the public that a release has occurred.
10 Notification procedures shall be consistent with the notification
11 requirements of section 32 of this act;
12 (5) Methods for determining the occurrence of a release
13 and the area or population likely to be affected by the release;
14 (6) A description of emergency equipment and facilities
15 in the community and at each facility in the community subject to
16 the Nebraska Emergency Planning and Community Right to Know Act and
17 an identification of the persons responsible for the equipment and
18 facilities;
19 (7) Evacuation plans, including provisions for a
20 precautionary evacuation and alternative traffic routes;
21 (8) Training programs, including schedules for training
22 of local emergency response and medical personnel; and
23 (9) Methods and schedules for exercising the emergency
24 plan.
25 Sec. 31. Each local emergency planning committee shall
26 obtain the approval of the emergency plan from the governing bodies
27 having jurisdiction in the emergency planning district prior to
28 submitting the plan to the commission. Each governing body
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1 receiving a plan for approval shall provide notice and opportunity
2 for public comment on the plan prior to taking action to approve.
3 Following approval by all necessary governing bodies, the committee
4 shall submit the plan to the commission. The commission shall
5 review the plan and make recommendations to the committee on
6 revisions to the plan that may be necessary to ensure coordination
7 of the plan with emergency plans of other emergency planning
8 districts. To the maximum extent practicable, such review shall
9 not delay implementation of the plan.
10 Sec. 32. (1) An owner or operator of a facility shall
11 immediately provide notice as described in subsection (2) of this
12 section if:
13 (a) A release of an extremely hazardous substance occurs
14 from a facility at which a hazardous chemical is produced, used, or
15 stored and such release requires a notification under section
16 103(a) of the Comprehensive Environmental Response, Compensation,
17 and Liability Act of 1980, as amended, 42 U.S.C. 9601 et seq.;
18 (b) A release of an extremely hazardous substance occurs
19 from a facility at which a hazardous chemical is produced, used, or
20 stored and such release is not subject to the notification
21 requirements under section 103(a) of the Comprehensive
22 Environmental Response, Compensation, and Liability Act of 1980,
23 but only if the release:
24 (i) Is not a federally permitted release as defined in
25 section 101(10) of the Comprehensive Environmental Response,
26 Compensation, and Liability Act of 1980;
27 (ii) Is in an amount in excess of a quantity which the
28 administrator has determined by regulation requires notice; and
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1 (iii) Occurs in a manner which would require notification
2 under section 103(a) of the Comprehensive Environmental Response,
3 Compensation, and Liability Act of 1980; or
4 (c) A release of a substance which is not an extremely
5 hazardous substance occurs at a facility at which a hazardous
6 chemical is produced, used, or stored and such release requires
7 notification under section 103(a) of the Comprehensive
8 Environmental Response, Compensation, and Liability Act of 1980.
9 (2) Notice shall be given immediately after the release
10 by the owner or operator of the facility by such means as telephone
11 or radio or in person to the commission, to the director, and to
12 the community emergency coordinator for the local emergency
13 planning committee for any area likely to be affected by the
14 release. With respect to transportation of a substance subject to
15 the requirements of this section or storage incident to such
16 transportation, the notice shall be satisfied by dialing 911 or, in
17 the absence of a 911 emergency telephone number, calling the
18 operator.
19 (3) Notice required under this section shall include each
20 of the following to the extent known at the time of the notice and
21 so long as no delay in responding to the emergency results:
22 (a) The chemical name or identity of any substance
23 involved in the release;
24 (b) An indication of whether the substance is an
25 extremely hazardous substance;
26 (c) An estimate of the quantity of any such substance
27 that was released into the environment;
28 (d) The time and duration of the release;
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1 (e) The medium or media into which the release occurred;
2 (f) Any known or anticipated acute or chronic health
3 risks associated with the emergency and, if appropriate, advice
4 regarding medical attention necessary for exposed individuals;
5 (g) Proper precautions to take as a result of the
6 release, including evacuation, unless such information is readily
7 available to the community emergency coordinator pursuant to the
8 emergency plan; and
9 (h) The name and telephone number of the person or
10 persons to be contacted for further information.
11 (4) As soon as practicable after a release which requires
12 notice and as more information becomes available, such owner or
13 operator shall provide a written followup emergency notice or
14 notices setting forth and updating the information required under
15 subsection (3) of this section and including additional information
16 with respect to:
17 (a) Actions taken to respond to and contain the release;
18 (b) Any known or anticipated acute or chronic health
19 risks associated with the release; and
20 (c) If appropriate, advice regarding medical attention
21 necessary for exposed individuals.
22 (5) This section does not apply to any release which
23 results in exposure to persons solely within the site or sites on
24 which a facility is located. The exemption provided in section 37
25 of this act relating to transportation does not apply to this
26 section.
27 (6) For purposes of this section, facility also includes
28 motor vehicles, rolling stock, and aircraft.
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1 Sec. 33. (1) The owner or operator of any facility which
2 is required to prepare or have available a material safety data
3 sheet for a hazardous chemical under the Occupational Safety and
4 Health Act of 1970, 29 U.S.C. 651 et seq., and regulations
5 promulgated under the act shall submit a material safety data sheet
6 for each such chemical or shall submit a list of chemicals to:
7 (a) The local emergency planning committee for the
8 emergency planning district in which the facility is located;
9 (b) The commission;
10 (c) The fire department with jurisdiction over the
11 facility; and
12 (d) The director.
13 (2) An owner or operator may meet the requirements of
14 this section with respect to a hazardous chemical which is a
15 mixture by doing one of the following:
16 (a) Submitting a material safety data sheet for, or
17 identifying on a list, each element or compound in the mixture
18 which is a hazardous chemical. If more than one mixture has the
19 same element or compound, only one material safety data sheet, or
20 one listing, of the element or compound is necessary; or
21 (b) Submitting a material safety data sheet for the
22 mixture itself or identifying the mixture on a list of chemicals.
23 (3) Each owner or operator of a facility submitting a
24 list of chemicals under subsection (1) of this section shall, upon
25 request by the committee, submit the material safety data sheet for
26 any chemical on the list to the committee.
27 (4) A committee, upon request by any person, shall make
28 available a material safety data sheet to the person in accordance
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1 with section 39 of this act. If the committee does not have the
2 requested material safety data sheet, the committee shall request
3 the sheet from the facility owner or operator and then make the
4 sheet available to the person in accordance with section 39 of this
5 act.
6 (5) The initial material safety data sheet or list of
7 chemicals required under this section with respect to a hazardous
8 chemical shall be provided before the later of:
9 (a) January 1, 1998; or
10 (b) Three months after the owner or operator of a
11 facility is required to prepare or have available a material safety
12 data sheet for the chemical under the Occupational Safety and
13 Health Act of 1970, 29 U.S.C. 651 et seq., and regulations
14 promulgated under the act.
15 (6) Within three months following discovery by an owner
16 or operator of significant new information concerning an aspect of
17 a hazardous chemical for which a material safety data sheet was
18 previously submitted to the committee under subsection (1) of this
19 section, a revised sheet shall be provided to the committee.
20 (7) For purposes of this section, hazardous chemical does
21 not include:
22 (a) Any food, food additive, color additive, drug, or
23 cosmetic regulated by the federal Food and Drug Administration;
24 (b) Any substance present as a solid in any manufactured
25 item to the extent exposure to the substance does not occur under
26 normal conditions of use;
27 (c) Any substance to the extent it is used for personal,
28 family, or household purposes or is present in the same form and
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1 concentration as a product packaged for distribution and use by the
2 general public;
3 (d) Any substance to the extent it is used in a research
4 laboratory or a hospital or other medical facility under the direct
5 supervision of a technically qualified individual; or
6 (e) Any substance to the extent it is used in routine
7 agricultural operations or is a fertilizer held for sale by a
8 retailer to the ultimate consumer.
9 Sec. 34. (1) The owner or operator of any facility which
10 is required to prepare or have available a material safety data
11 sheet for a hazardous chemical shall prepare and submit annually on
12 or before March 1 beginning in 1998 a tier II inventory form on
13 data for the preceding calendar year to:
14 (a) The local emergency planning committee for the
15 emergency planning district in which the facility is located;
16 (b) The commission;
17 (c) The fire department with jurisdiction over the
18 facility; and
19 (d) The director.
20 (2) An owner or operator may meet the requirements of
21 this section with respect to a hazardous chemical which is a
22 mixture by doing one of the following:
23 (a) Providing information on the tier II inventory form
24 on each element or compound in the mixture which is a hazardous
25 chemical. If more than one mixture has the same element or
26 compound, only one listing on the tier II inventory form for the
27 element or compound at the facility is necessary; or
28 (b) Providing information on the tier II inventory form
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1 on the mixture itself.
2 (3) A hazardous chemical subject to the requirements of
3 this section is any hazardous chemical for which a material safety
4 data sheet or a list of chemicals is required under section 33 of
5 this act.
6 (4) A tier II inventory form shall provide the following
7 information for each hazardous chemical present at the facility:
8 (a) The chemical name or the common name of the chemical
9 as provided on the material safety data sheet;
10 (b) An estimate in ranges of the maximum amount of the
11 hazardous chemical present at the facility at any time during the
12 preceding calendar year;
13 (c) An estimate in ranges of the average daily amount of
14 the hazardous chemical present at the facility during the preceding
15 calendar year;
16 (d) A brief description of the manner of storage of the
17 hazardous chemical;
18 (e) The location at the facility of the hazardous
19 chemical; and
20 (f) An indication of whether the owner elects to withhold
21 location information of a specific hazardous chemical from
22 disclosure to the public under section 39 of this act.
23 (5) Upon request by the commission, the director, a
24 committee, or a fire department with jurisdiction over the
25 facility, the owner or operator of a facility shall provide tier II
26 information, as described in subsection (4) of this section, to the
27 person making the request. Any such request shall be with respect
28 to a specific facility.
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1 (6) A state or local official acting in his or her
2 official capacity may have access to tier II information by
3 submitting a request to the commission or a committee. Upon
4 receipt of a request for tier II information, the commission or
5 committee shall request such information from the facility owner or
6 operator and make such information available to the official.
7 (7) Any person may make request to the commission, the
8 director, or a committee for tier II information relating to the
9 preceding calendar year with respect to a facility. Any such
10 request shall be in writing and shall be with respect to a specific
11 facility.
12 (8) Any tier II information which the commission, the
13 director, or a committee has in its possession shall be made
14 available to a person making a request under this section in
15 accordance with section 39 of this act. If the commission,
16 director, or committee does not have the tier II information in its
17 possession, upon a request for the information the commission,
18 director, or committee shall request the facility owner or operator
19 for the information with respect to a hazardous chemical which a
20 facility has stored in an amount in excess of ten thousand pounds
21 present at the facility at any time during the preceding calendar
22 year and make such information available in accordance with section
23 39 to the person making the request.
24 (9) In the case of tier II information which is not in
25 the possession of the commission, the director, or a committee and
26 which is with respect to a hazardous chemical which a facility has
27 stored in an amount less than ten thousand pounds present at the
28 facility at any time during the preceding calendar year, a request
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1 from a person must include the general need for the information.
2 The commission, director, or committee may request the facility
3 owner or operator for the tier II information on behalf of the
4 person making the request. Upon receipt of any information
5 requested on behalf of such person, the commission, director, or
6 committee shall make the information available to the person in
7 accordance with section 39 of this act.
8 (10) The commission, the director, or a committee shall
9 respond to a request for tier II information under this section no
10 later than forty-five days after the date of receipt of the
11 request.
12 (11) An owner or operator of a facility which files an
13 inventory form under this section shall, upon request by the fire
14 department with jurisdiction over the facility, allow the fire
15 department to conduct an onsite inspection of the facility and
16 shall provide to the fire department specific location information
17 on hazardous chemicals at the facility.
18 Sec. 35. (1) The owner or operator of a facility subject
19 to the requirements of this section shall complete a toxic chemical
20 release form as published under section 313(g) of Title III for
21 each toxic chemical that was manufactured, processed, or otherwise
22 used in quantities exceeding the toxic chemical threshold quantity
23 established by subsection (3) of this section during the preceding
24 calendar year at such facility. The form shall be submitted to the
25 administrator and to the director annually on July 1 and shall
26 contain data reflecting releases during the preceding calendar
27 year.
28 (2) The requirements of this section apply to owners and
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1 operators of facilities that have ten or more full-time employees,
2 that are in Standard Industrial Classification Codes 20 through 39,
3 as in effect on July 1, 1985, and that has manufactured, processed,
4 or otherwise used a toxic chemical in excess of the allowable
5 threshold quantity of that toxic chemical during the calendar year
6 for which a release form is required under this section.
7 (3) The threshold amounts for purposes of reporting toxic
8 chemicals under this section are as follows:
9 (a) Ten thousand pounds of the toxic chemical per year
10 for a toxic chemical used at a facility; and
11 (b) Twenty-five thousand pounds of a toxic chemical
12 manufactured or processed at a facility per year.
13 Sec. 36. (1) An owner or operator of a facility which is
14 subject to the requirements of section 33, 34, or 35 of this act
15 and the requirements of Title III shall provide the specific
16 chemical identity, if known, of a hazardous chemical, an extremely
17 hazardous substance, or a toxic chemical to any health professional
18 who requests such information in writing if the health professional
19 provides a written statement of need under this subsection and a
20 written confidentiality agreement under subsection (5) of this
21 section. The written statement of need shall be a statement that
22 the health professional has a reasonable basis to suspect that:
23 (a) The information is needed for purposes of diagnosis
24 or treatment of an individual;
25 (b) The individual or individuals being diagnosed or
26 treated have been exposed to the chemical concerned; and
27 (c) Knowledge of the specific chemical identity of such
28 chemical will assist in diagnosis or treatment.
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1 Following such a written request, the owner or operator
2 to whom such request is made shall promptly provide the requested
3 information to the health professional. The authority to withhold
4 the specific chemical identity of a chemical under section 322 of
5 Title III when such information is a trade secret shall not apply
6 to information required to be provided under this subsection
7 subject to subsection (5) of this section.
8 (2) An owner or operator of a facility which is subject
9 to the requirements of section 33, 34, or 35 of this act and Title
10 III shall provide a copy of a material safety data sheet, an
11 inventory form, or a toxic chemical release form, including the
12 specific chemical identity, if known, of a hazardous chemical, an
13 extremely hazardous substance, or a toxic chemical, to any treating
14 physician or nurse who requests such information if such physician
15 or nurse determines:
16 (a) A medical emergency exists;
17 (b) The specific chemical identity of the chemical
18 concerned is necessary for or will assist in emergency or first-aid
19 diagnosis or treatment; and
20 (c) The individual or individuals being diagnosed or
21 treated have been exposed to the chemical concerned.
22 Immediately following such a request, the owner or
23 operator to whom such request is made shall provide the requested
24 information to the physician or nurse. The authority to withhold
25 the specific chemical identity of a chemical under section 322 of
26 Title III regarding trade secrets from a material safety data
27 sheet, an inventory form, or a toxic chemical release form shall
28 not apply to information required to be provided to a treating
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1 physician or nurse under this subsection. No written
2 confidentiality agreement or statement of need shall be required as
3 a precondition of such disclosure, but the owner or operator
4 disclosing such information may require a written confidentiality
5 agreement in accordance with subsection (5) of this section and a
6 statement setting forth the items listed in subdivisions (2)(a)
7 through (2)(c) of this section as soon as circumstances permit.
8 (3) An owner or operator of a facility which is subject
9 to the requirements of section 33, 34, or 35 of this act and Title
10 III shall provide the specific chemical identity, if known, of a
11 hazardous chemical, an extremely hazardous substance, or a toxic
12 chemical to any health professional:
13 (a) Who is a local or state government employee or a
14 person under contract with the local or state government; and
15 (b) Who requests such information in writing and provides
16 a written statement of need under subsection (4) of this section
17 and a written confidentiality agreement under subsection (5) of
18 this section.
19 Following such a written request, the owner or operator
20 to whom such request is made shall promptly provide the requested
21 information to the local or state health professional. The
22 authority to withhold the specific chemical identity of a chemical
23 under section 322 of Title III when such information is a trade
24 secret shall not apply to information required to be provided under
25 this subsection subject to subsection (5) of this section.
26 (4) The written statement of need shall be a statement
27 that describes with reasonable detail one or more of the following
28 health needs for the information:
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1 (a) To assess exposure of persons living in a local
2 community to the hazards of the chemical concerned;
3 (b) To conduct or assess sampling to determine exposure
4 levels of various population groups;
5 (c) To conduct periodic medical surveillance of exposed
6 population groups;
7 (d) To provide medical treatment to exposed individuals
8 or population groups;
9 (e) To conduct studies to determine the health effects of
10 exposure; and
11 (f) To conduct studies to aid in the identification of a
12 chemical that may reasonably be anticipated to cause an observed
13 health effect.
14 (5) Any person obtaining information under subsection (1)
15 or (3) of this section shall be required to agree in a written
16 confidentiality agreement that he or she will not use the
17 information for any purpose other than the health needs asserted in
18 the statement of need except as may otherwise be authorized by the
19 terms of the agreement or by the person providing such information.
20 Nothing in this subsection shall preclude the parties to a
21 confidentiality agreement from pursuing any remedies to the extent
22 permitted by law.
23 Sec. 37. Except as provided in section 32 of this act,
24 the Nebraska Emergency Planning and Community Right to Know Act
25 does not apply to the transportation, including the storage
26 incident to such transportation, of any substance or chemical
27 subject to the requirements of the act, including the
28 transportation and distribution of natural gas.
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1 Sec. 38. (1) Nothing in the Nebraska Emergency Planning
2 and Community Right to Know Act shall:
3 (a) Preempt any local law;
4 (b) Except as provided in subsection (2) of this section,
5 otherwise affect any local law or the authority of any local
6 government to adopt or enforce any local law; and
7 (c) Affect or modify in any way the obligations or
8 liabilities of any person under other state or federal law.
9 (2) Any local law enacted after the effective date of
10 this act which requires the submission of a material safety data
11 sheet from facility owners or operators shall require that the data
12 sheet be identical in content and format to the data sheet required
13 under section 33 of this act. In addition, a locality may require
14 the submission of information which is supplemental to the
15 information required on the data sheet, including information on
16 the location and quantity of hazardous chemicals present at the
17 facility, through additional sheets attached to the data sheet or
18 such other means as the locality considers appropriate.
19 Sec. 39. (1) Each emergency plan, material safety data
20 sheet, list of chemicals, inventory form, toxic chemical release
21 form, and followup emergency notice shall be made available to the
22 general public, consistent with section 322 of Title III, during
23 normal working hours at the location or locations designated by the
24 Department of Environmental Quality, the commission, or a local
25 emergency planning committee, as appropriate. Upon request by an
26 owner or operator of a facility subject to the requirements of
27 section 34 of this act, the Department of Environmental Quality,
28 the commission, or the appropriate committee shall withhold from
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1 disclosure under this section the location of any specific chemical
2 required by section 35 of this act to be contained in an inventory
3 form as tier II information.
4 (2) Each local emergency planning committee shall
5 annually publish a notice in local newspapers that the emergency
6 plan, material safety data sheets, and inventory forms have been
7 submitted under this section. The notice shall state that followup
8 emergency notices may subsequently be issued. Such notice shall
9 announce that members of the public who wish to review any such
10 plan, sheet, form, or followup notice may do so at the location
11 designated under subsection (1) of this section.
12 Sec. 40. The State Administrator may order a facility
13 owner or operator, except an owner or operator of a facility
14 designated under subsection (3) of section 28 of this act, to
15 comply with the notification requirements contained in subsection
16 (1) of section 28 of this act. The district court for the district
17 in which the facility is located shall have jurisdiction to enforce
18 the order. Any person who violates or fails to obey such an order
19 shall be liable for a civil penalty of not more than twenty-five
20 thousand dollars for each day in which such violation occurs or
21 such failure to comply continues.
22 Sec. 41. (1) A civil penalty of not more than
23 twenty-five thousand dollars may be assessed by the director or
24 State Administrator for each violation of section 28 of this act.
25 (2) No civil penalty may be assessed under this section
26 unless the person accused of the violation is given notice and
27 opportunity for a hearing with respect to the violation.
28 (3) In determining the amount of any penalty assessed
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1 pursuant to this section, the director or State Administrator shall
2 take into account the nature, circumstances, extent, and gravity of
3 the violation or violations and, with respect to the violator, the
4 ability to pay, any prior history of such violations, the degree of
5 culpability, any economic benefit or savings resulting from the
6 violation, and such other matters as justice may require.
7 (4) A civil penalty of not more than twenty-five thousand
8 dollars per day for each day during which the violation continues
9 may be assessed by the director or State Administrator in the case
10 of a violation of the notification of release requirements
11 contained in section 32 of this act. In the case of a second or
12 subsequent violation, the amount of such penalty may not be more
13 than seventy-five thousand dollars for each day during which the
14 violation continues.
15 (5) The director or State Administrator may bring an
16 action in the district court where the violation occurred to assess
17 and collect a penalty of not more than twenty-five thousand dollars
18 per day for each day during which the violation of the notification
19 of release requirements in section 32 of this act continues. In
20 the case of a second or subsequent violation, the amount of such
21 penalty may be not more than seventy-five thousand dollars for each
22 day during which the violation continues.
23 Sec. 42. Any person who knowingly and willfully fails to
24 provide notice in accordance with the notification of release
25 requirements in section 32 of this act shall, upon conviction, be
26 guilty of a Class III felony.
27 Sec. 43. (1) Any person who violates any requirements
28 regarding section 34 or 35 of this act shall be liable for a civil
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1 penalty in an amount not to exceed twenty-five thousand dollars for
2 each such violation.
3 (2) Any person who violates any requirement of section 33
4 of this act or subsection (2) of section 36 of this act shall be
5 liable for a civil penalty in an amount not to exceed ten thousand
6 dollars for each such violation.
7 (3) Each day a violation described in subsection (1) or
8 (2) of this section continues shall constitute a separate
9 violation.
10 (4) The director may assess any civil penalty for which a
11 person is liable under this section by administrative order or may
12 bring an action to assess and collect the penalty in the district
13 court for the district in which the person from whom the penalty is
14 sought resides or in which such person's principal place of
15 business is located.
16 Sec. 44. Whenever any facility owner or operator
17 required to provide information under section 36 of this act to a
18 health professional who has requested such information fails or
19 refuses to provide such information in accordance with such
20 section, such health professional may bring an action in the
21 appropriate district court to require such facility owner or
22 operator to provide the information. The district court shall have
23 jurisdiction to issue such orders and take such other action as may
24 be necessary to enforce the requirements of section 36 of this act.
25 Sec. 45. (1) Any person against whom a civil penalty is
26 assessed under sections 40, 41, 43, and 44 of this act may obtain
27 review thereof in the appropriate district court by filing a notice
28 of appeal in such court within thirty days after the date of such
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1 order and by simultaneously sending a copy of such notice by
2 certified mail to the director. The director shall promptly file
3 in such court a certified copy of the record upon which such
4 violation was found or such penalty imposed. If any person fails
5 to pay an assessment of a civil penalty after it has become a final
6 and unappealable order or after the appropriate court has entered
7 final judgment in favor of the state, the director may request the
8 Attorney General to institute a civil action in an appropriate
9 district court to collect the penalty, and such court shall have
10 jurisdiction to hear and decide any such action. In hearing such
11 action, the court shall have authority to review the violation and
12 the assessment of the civil penalty on the record.
13 (2) The director may issue subpoenas for the attendance
14 and testimony of witnesses and the production of relevant papers,
15 books, or documents in connection with hearings under sections 40,
16 41, 43, and 44 of this act and may adopt and promulgate rules and
17 regulations for discovery procedures.
18 Sec. 46. Except as provided in section 50 of this act,
19 any person may commence a civil action on his or her own behalf
20 against:
21 (1) An owner or operator of a facility for failure to:
22 (a) Submit a followup emergency notice under section 32
23 of this act;
24 (b) Submit a material safety data sheet or a list of
25 chemicals under section 33 of this act;
26 (c) Complete and submit a tier II inventory form under
27 section 34 of this act; or
28 (d) Complete and submit a toxic chemical release form
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1 under section 35 of this act and section 313 of Title III;
2 (2) The commission and the director for failure to
3 provide a mechanism for public availability of information in
4 accordance with section 39 of this act; and
5 (3) The commission and the director for failure to
6 respond to a request for tier II information under section 34 of
7 this act within one hundred twenty days after the date of receipt
8 of the request.
9 Sec. 47. (1) Any state or local government may commence
10 a civil action against an owner or operator of a facility for
11 failure to:
12 (a) Provide notification to the commission under
13 subsection (1) of section 28 of this act;
14 (b) Submit a material safety data sheet or a list of
15 chemicals under section 33 of this act;
16 (c) Make available information requested under
17 subsections (3) and (4) of section 33 of this act; and
18 (d) Complete and submit a tier II inventory form under
19 section 34 of this act.
20 (2) The commission, the director, or a local emergency
21 planning committee may commence a civil action against an owner or
22 operator of a facility for failure to provide information under
23 section 29 of this act or for failure to submit tier II information
24 under subsection (5) of section 34 of this act.
25 (3) The state may commence a civil action against the
26 administrator for failure to provide information to the state under
27 section 322(g) of Title III.
28 Sec. 48. (1) Any action under section 46 or 47 of this
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1 act, except as provided in subsection (2) of this section, against
2 an owner or operator of a facility shall be brought in the district
3 court for the district in which the alleged violation occurred.
4 (2) Any action under subsection (3) of section 47 of this
5 act against the administrator may be brought in the United States
6 District Court for the District of Columbia.
7 (3) Except as provided in subsection (2) of this section,
8 the district court shall have jurisdiction in actions brought under
9 sections 46 and 47 of this act against an owner or operator of a
10 facility to enforce the requirement concerned and to impose any
11 civil penalty provided for violation of that requirement. The
12 district court shall have jurisdiction in actions brought under
13 sections 46 and 47 of this act against the commission and the
14 director to order the commission and the director to perform the
15 act or duty concerned.
16 Sec. 49. (1) No action may be commenced under
17 subdivision (1) of section 46 of this act prior to sixty days after
18 the plaintiff has given notice of the alleged violation to the
19 director and the alleged violator. Notice under this subsection
20 shall be given in such manner as prescribed by the rules and
21 regulations of the director.
22 (2) No action may be commenced under subdivision (2) or
23 (3) of section 46 of this act prior to sixty days after the date on
24 which the plaintiff gives notice to the commission and the director
25 that the plaintiff will commence the action. Notice under this
26 subsection shall be given in the manner prescribed by the director
27 by rule and regulation.
28 Sec. 50. No action may be commenced under section 46 or
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1 47 of this act against an owner or operator of a facility if the
2 director has commenced and is diligently pursuing an administrative
3 order or civil action to enforce the requirement concerned or to
4 impose a civil penalty under the Nebraska Emergency Planning and
5 Community Right to Know Act with respect to the violation of the
6 requirement.
7 Sec. 51. (1) In issuing any final order in any action
8 brought under the Nebraska Emergency Planning and Community Right
9 to Know Act, the court may award costs of litigation, including
10 reasonable attorney's fees and expert witness fees, to the
11 prevailing or the substantially prevailing party if the court
12 determines such an award is appropriate.
13 (2) Nothing in section 46 or 47 of this act shall
14 restrict or expand any right which any person or class of persons
15 may have under any federal or state statute or common law to seek
16 enforcement of any requirement of the act.
17 Sec. 52. (1) In any action under the Nebraska Emergency
18 Planning and Community Right to Know Act, the United States or the
19 State of Nebraska, or both, if not a party, may intervene as a
20 matter of right.
21 (2) In any action under the act, any person may intervene
22 as a matter of right when such person has a direct interest which
23 is or may be adversely affected by the action and the disposition
24 of the action may, as a practical matter, impair or impede the
25 person's ability to protect that interest.
26 Sec. 53. The Nebraska Emergency Management Agency and
27 the Department of Environmental Quality shall adopt and promulgate
28 rules and regulations to carry out the Nebraska Emergency Planning
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1 and Community Right to Know Act.
2 Sec. 54. If any section in this act or any part of any
3 section is declared invalid or unconstitutional, the declaration
4 shall not affect the validity or constitutionality of the remaining
5 portions.
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