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Environmental Audit Immunity Laws and Self-Disclosure Policies: A State-By-State Comparison (2004 Update)

Table of Contents
Tables

by John A. Lee and Bertram C. Frey

The copyright notice below appears in the July 2004 Bureau of National Affairs Inc. publication of this article. The copyrighted article is reprinted here with permission of the authors.

COPYRIGHT © 2004. All rights reserved by the copyright owners. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the copyright owners. The views expressed in this article are those of the authors and are not necessarily those of U.S. EPA.

At the time of writing, John A. Lee was an associate at the law firm of Fedota Childers & May in Chicago, and a research fellow and attorney at the Center for International Human Rights at Northwestern University. Bertram C. Frey was acting regional counsel for Region 5 of the U.S. EPA. The views expressed in this article are the views of the authors and are not necessarily those of the U.S. EPA. Research and editorial assistance for this article was given by Nicole Wood, a Region 5 intern at the time of writing.

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Introduction

This article presents an analysis of current legislative and administrative methods used by the states and the federal government to provide immunity from prosecution or penalty mitigation for voluntarily disclosed environmental violations that were discovered either as a result of conducting an environmental audit1 or as part of an environmental management system.2 In addition to updating an analysis of state environmental audit immunity laws that was originally presented in "Environmental Audit Immunity Laws: A State-by-State Comparison" published in the June 13, 1997 edition of the Bureau of National Affairs (BNA) Environment Reporter and the July 4, 1997 edition of the BNA Chemical Regulation Reporter,3 this article provides an analysis of current state and federal environmental self-disclosure policies, which have recently become more prevalent as a method of providing an incentive for regulated entities to voluntarily disclose and address environmental violations.

For the purposes of this article the term "immunity" generally refers to protection from prosecution of:

  1. a violation of a state or federal environmental law or regulation;
  2. a violation of an administrative order, or a civil or criminal judicial order or decree; or
  3. a violation of a criminal plea agreement.

In this context, the term "immunity" is not used in the sense of a witness being granted statutory immunity from prosecution for use of the witness' testimony. Thus the distinction between "use" immunity and "transaction" immunity generally has no relevance for this article.4 In contrast to immunity, the term "mitigation" refers to reduction, abatement or diminution of a penalty or punishment imposed by law.5 In this article, "mitigation" means making the penalty less severe or, in some instances, eliminating it.

Since the publication of the earlier article, ten of the sixteen states in the original analysis6 have enacted statutory revisions of their environmental audit immunity laws,7 while audit immunity laws have been enacted for the first time in seven other states.8 A number of states have also issued a clarifying opinion or statement from their attorney general and/or entered into a Memorandum of Agreement with the United States Environmental Protection Agency (EPA) to satisfy minimum requirements for federally authorized, delegated, or approved environmental programs.9 In addition, the immunity laws of three states, Idaho, Montana, and New Hampshire, have succumbed to sunset provisions,10 and Arizona's immunity law, which passed in 2000, never became effective.11

Moreover, 18 states now provide an incentive in the form of mitigation or elimination of penalties for voluntary self-disclosures of violations of environmental laws and regulations discovered during an environmental audit as long as the conditions of the state enforcement policy are met.12 These self-disclosure policies, which are administered by state environmental agencies, do not carry the legal force of statutes or rules, and can be adapted and modified in response to changing requirements more easily than can enacted legislation. Unlike their statutory counterparts, self-disclosure policies generally provide for "penalty mitigation" rather than "immunity."

One state, Oklahoma,13 rather than enacting a statute or adopting a policy, has promulgated a rule that provides for immunity from prosecution for civil or administrative penalties under certain circumstances and for mitigation of civil or administrative penalties under other circumstances. Another state, Illinois,14 has recently enacted a statute that permits mitigation of a civil penalty if the person who voluntarily self-discloses its noncompliance meets a number of specified conditions set forth in the statute. At the time of this writing, early April 2004, only eleven states were without some form of environmental audit immunity or mitigation law, self-disclosure policy, or audit rule.15

The environmental audit immunity or mitigation laws, rule, and/or self-disclosure policies in effect in each of the states as of early April 2004 are listed in Table I. Although not addressed in depth in this article, many states provide, in addition to penalty immunity or mitigation, an environmental audit privilege for voluntary disclosure of environmental violations. For the sake of thoroughness, Table I also indicates which states have privilege laws and refers to the subsequent tables in which each state's audit immunity or mitigation law, rule or self-disclosure policy is analyzed.

This article examines the 19 state environmental audit immunity laws in effect as of early April 2004, along with the expired laws of Idaho, Montana, and New Hampshire, and the Arizona law, which never came into effect.16 The article also examines the 18 state self-disclosure policies in force at the time of this writing. In addition, this article reviews Illinois' civil penalty mitigation law and Oklahoma's audit rule.

EPA also has implemented two federal self-disclosure policies that provide an incentive in the form of penalty mitigation for environmental law violations voluntarily and promptly disclosed and expeditiously remedied. The first policy, Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations17 (EPA Audit Policy) provides for mitigation or elimination of penalties for voluntary disclosure of environmental violations found during an environmental audit or through an approved environmental management system. The second policy, the EPA Small Business Compliance Policy,18 which also provides for penalty mitigation after voluntary disclosure of a violation, is specifically tailored to small businesses with 100 or fewer employees. Because many states defer to these EPA self-disclosure policies, both are analyzed.

Not analyzed, but also in use by EPA and some states are compliance incentive programs and audit protocols. Compliance incentive programs (CIP) are used by EPA to invite specific company groups or industrial sectors to disclose and remediate environmental violations in exchange for penalty mitigation, a grace period, or other incentives, such as lessened frequency of inspections. EPA, too, uses audit protocols, which assist in the development of guidance programs at individual facilities to evaluate their compliance with environmental requirements under federal law.

As of early 2004, EPA uses 11 audit protocols, which address compliance with the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Clean Water Act (CWA), the Emergency Planning and Community Right-to-Know Act (EPCRA), the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), the Resource Conservation and Recovery Act (RCRA), the Safe Drinking Water Act (SDWA) and the Toxic Substance Control Act (TSCA).

Lastly, several states attorneys general offices have issued clarifying opinions or statements concerning their state's environmental audit immunity law. Because these opinions and statements provide valuable guidance on how the law will be interpreted and administered in the state, an analysis of these opinions is provided.

This article does not enter into the policy debate on whether, and which of, the various provisions of environmental audit immunity laws are good public policy. Instead, the article summarizes and categorizes the provisions contained in each law, with particular focus on updating the prior article to identify where amendments have occurred. While many works have addressed the issue of environmental audit privilege and the merits of privilege laws, few published articles have examined state environmental audit immunity laws or self-disclosure policies.19

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General Environmental Audit Immunity Law Provisions

Generally, state environmental audit immunity laws grant immunity only from civil prosecution (in both civil judicial and administrative forums) and the imposition of penalties and fines for violations of environmental laws that were discovered during a voluntary environmental assessment or audit. A few states, however, prohibit prosecutions of civil actions to obtain injunctive relief to correct such violations20 or grant some form of immunity or penalty mitigation in situations involving criminal conduct.21

Almost every state examined herein requires a violation to be voluntarily disclosed before any penalty immunity will be applicable. Nevertheless, only 9 of the 19 states22 specify who has the burden of proving that the disclosure is voluntary, while 12 states23 specify the elements of a prima facie case for a voluntary disclosure. Three states, New Jersey, Rhode Island and South Carolina, do not require the identification of the violation to come specifically from an environmental audit. In various combinations, certain states provide immunity from violations of administrative orders and consent decrees, civil judicial orders and consent decrees, permit provisions, and certain environmental laws and regulations. Every state requires that remedial actions be taken before immunity applies, but only a few states require proof that corrective action was actually taken or require the regulated entity to undertake steps to prevent recurrence of the violation for which immunity is sought.24

When a disclosed violation results in a significant economic benefit to the violator, 15 of the state laws mandate the state to withhold immunity or only provide some degree of penalty mitigation. In contrast, in 1997, only 6 states withheld immunity in situations where the violation resulted in a significant economic benefit for the disclosing entity.25 In instances where violations are required to be reported by law, five states provide penalty mitigation for such disclosures instead of penalty immunity.26

A major category of immunity exceptions concerns the previous occurrence of civil, administrative or criminal environmental violations, with the states' laws differing on how a previous environmental violation affects a request for immunity for a current violation. Immunity can also be withheld based on scienter, the seriousness of the violation, the potential for harm, and whether the disclosed violation is part of a pattern of environmental violations. For example, most of the laws provide, or presumably provide, immunity for a civil violation either negligently or recklessly committed, but withhold immunity if the violations are intentionally or knowingly committed. Similarly, most states deny immunity if the disclosed violation is serious or caused imminent or substantial endangerment or is part of a pattern. Many of these immunity exceptions have been enacted by the states since the date of the original article's publication.

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Environmental Audit Immunity Laws: Recent Amendments and Revisions

In almost all instances, the recent revisions and interpretations of the states' environmental audit immunity laws are the result of an ongoing dialogue among the EPA, the states, and a variety of interest groups. As a general principal, the EPA opposes the passage of environmental audit immunity laws by the states.27 In states where the laws are already enacted, the EPA has focused its review of each audit immunity law on whether that law meets minimum requirements for federally authorized, delegated or approved environmental programs.

In general, EPA is interested in seven key issues concerning each state's environmental audit immunity law. For a number of legal and policy reasons, such as restrictions on the ability of the states to obtain penalties or other relief for violations of federal program requirements, the EPA does not support the granting of immunity in situations involving:

  1. individual criminal conduct;
  2. violations needing injunctive relief to correct them;
  3. repeat or pattern violations;
  4. violations of existing court or administrative orders;
  5. violations which cause serious harm to human health or the environment;
  6. violations which create an imminent and substantial endangerment to human health or the environment; or
  7. violations where the regulated entity receives a significant economic benefit from noncompliance with the environmental laws.28

While the amendments to the environmental audit immunity laws vary by state, several trends among the newly amended laws are apparent. The most widely amended section of the states' environmental audit immunity laws addresses the situation where a regulated entity, either in fact or in effect, receives an economic benefit from violating the environmental laws of the state. As outlined above, South Carolina, Kentucky, Colorado, Michigan, Minnesota, Texas, and Ohio no longer allow for immunity when a violation results in a significant economic benefit or competitive advantage for the violator. These states join Utah, Nevada, Alaska, Rhode Island, Mississippi, Iowa, and Nebraska in providing no immunity in situations where the regulated entity receives a significant economic benefit from the violation.

Another area where several of the states reversed their prior legislative enactments involves situations where a violation causes serious harm or creates an imminent and substantial endangerment to human health or the environment. Since the writing of the original article, Colorado, Michigan, and Ohio each enacted exceptions to immunity in situations where a violation is serious, leaving the statutes of Alaska, Iowa, Nebraska, Wyoming, and Virginia as the only statutes remaining without an explicit exception to penalty immunity when a violation is serious.

Also during this time period, Texas amended its statute to create an explicit exclusion from immunity where a violation causes an imminent and substantial endangerment to human health or the environment. Thus of the 19 state environmental immunity laws, only the laws of 3 states (Kansas, South Dakota, and Wyoming) do not explicitly exempt or exclude from immunity situations involving imminent and substantial endangerment to the health of persons or the environment.

Moreover, states have limited the scope of immunity to a narrower category of violations than when the immunity laws were initially passed. In Michigan and Ohio, immunity is no longer available for violations of administrative orders or civil judicial orders. Likewise, in Minnesota a regulated entity can no longer receive immunity from violations of administrative orders, administrative consent decrees, civil judicial orders, or civil judicial consent decrees. As a result of the amendments enacted during the past six years, only Virginia, Mississippi, Iowa, Colorado, Utah and Wyoming currently allow penalty immunity for violations of administrative orders or decrees; Iowa, Mississippi, Colorado, and Wyoming are the only states that continue to allow penalty immunity for violations of civil judicial orders or decrees; and thus, only Colorado, Iowa, Mississippi, and Wyoming presently allow penalty immunity for violations of administrative and civil judicial orders or consent decrees.

The recently enacted amendments have limited the scope of immunity for environmental violations in other ways. Texas removed criminal liability from the scope of its environmental audit immunity laws, leaving only seven states that currently provide for some type of criminal immunity for voluntary disclosures of violations of environmental laws.29 Rhode Island created specific exclusions to immunity where a regulated entity commits a violation knowingly or recklessly. Ohio and Minnesota joined the majority of those states that have environmental immunity laws by creating specific exceptions to immunity where a previous environmental violation occurred. Ohio no longer grants immunity where violations constitute a pattern and, Minnesota does not give immunity for violations that are similar to previous violations at the specific facility in question. Finally, in contrast to the recent trend of restricting immunity, only 6 of the 19 states with environmental audit immunity laws explicitly exclude knowing or reckless violations from civil penalty immunity.30

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Attorneys General Opinions

The attorneys general of 15 states have issued clarifying opinions concerning their state environmental audit immunity laws.31 Primarily, these opinions have been issued in response to concerns expressed by EPA that many of the state laws do not meet the minimum requirements for federally delegated, authorized, or approved, state environmental programs.32 Specifically, the EPA expressed concern that many of the states' environmental audit immunity laws did not provide the minimum level of enforcement authority required under federal law. The recently enacted amendments to many of the state laws and the attorney's general opinions are in response to this concern. Even with these opinions and amendments, the EPA has made it clear that the federal government is not bound by state audit immunity laws in a federal enforcement action. Indeed, the attorneys general of Nevada and Virginia have specifically opined that their states' audit immunity laws do not apply to their federally delegated, approved or authorized environmental programs.

Most of the attorneys general opinions provide interpretations of how each law grants immunity for, grants an exception to immunity for, or excludes from immunity violations of environmental statutes or regulations. In general, the opinions address instances of violations that: (1) cause imminent and substantial endangerment; (2) require injunctive relief; (3) involve non-compliance with permits or administrative and judicial orders; or (4) have a requirement for voluntary disclosure. Overall, the opinions act to limit the scope of immunity provided in the statute. For example, most attorneys general opinions make clear that nothing in their state's immunity law prevents the state from obtaining injunctive relief for violations of environmental statutes. Also, most opinions emphasize that penalty immunity is excluded for violations that have resulted in, or that pose, an imminent threat of substantial endangerment to human health or the environment. Likewise, immunity is specifically conditioned upon a disclosure being voluntary and not required by statute or regulation.

On the whole, the opinions serve to meet the expressed concerns of EPA, but the effect and weight of the opinions can vary by state. For example in Michigan, the attorney general's opinion binds the entire state, including the governor.33 In the majority of the 50 states, however, the opinion carries advisory weight, and, although not binding on the courts, has a "prescriptive effect"on state agencies.34

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State Environmental Audit Self-Disclosure Policies

Many of the states that do not possess environmental audit immunity laws have issued environmental audit self-disclosure policies to provide guidance on how state agencies will address voluntary self-disclosures of environmental violations by regulated entities. As of early April 2004, 19 states35 have issued self-disclosure policies that provide for some measure of penalty mitigation for a voluntary disclosure of violations discovered during an environmental audit. In many of these states, legislators had at one time introduced environmental audit immunity legislation that, for various reasons, was never enacted. 36

Instead, these states now provide mitigation of civil and administrative penalties as an incentive to encourage environmental auditing and disclosure of violations found during the audit. Because these policies do not have the legal effect of statutes and regulations, they can more easily be modified (or ignored) by the state agency, depending on the environmental situation encountered. As stated in the EPA Self-Policing Policy:

This Policy sets forth factors for consideration that will guide the Agency in the exercise of enforcement discretion. It states the Agency's views as to the proper allocation of its enforcement resources. The Policy is not final Agency action and is intended as guidance . . . . EPA may decide to follow guidance provided in [the] document or to act at variance with it based on its analysis of the specific facts presented.37

Because states must satisfy minimum requirements to enable them to administer federally authorized, approved or delegated environmental programs, almost all of the state self-disclosure policies are consistent with either the EPA Self-Policing Policy or the EPA Small Business Compliance Policy. Some states, however, have made modifications to the EPA policies, either by adopting stricter requirements or adding requirements. One state, Hawaii, has adopted the EPA Self-Policing Policy in its entirety as the state's audit policy.

While state environmental audit self-disclosure policies vary in their level of detail, most provide for a similar degree of penalty mitigation. Almost every state environmental audit self-disclosure policy contains the following requirements for penalty mitigation to apply:

  1. the violation must be voluntarily disclosed;
  2. remedial action must be taken to address the disclosed violation;
  3. any economic benefit resulting from the disclosed violation may be recovered;
  4. penalty mitigation does not apply if the violation was required to be reported or the violation was under investigation;
  5. the violation can not be part of a pattern of violations or a similar violation can not previously have resulted in a compliance action; and
  6. penalty mitigation does not apply if the violation is serious or poses imminent or substantial endangerment to human health or the environment.

Where variations in the above requirements occur, they usually involve:

  1. the time frame for disclosure;
  2. whether the violation must have been discovered solely through an environmental audit38 or whether discovery as a result of carrying out a compliance management system is also permitted;
  3. whether penalty immunity is limited to administrative and civil penalties only, or is also extended to criminal violations;39
  4. the time frame for remedial action to apply;
  5. whether violations committed recklessly qualify for penalty mitigation;40 and
  6. whether other penalty relief is available if the disclosing entity does not meet all the requirements of the environmental audit disclosure policy.

In addition to the different legal effects of a self-disclosure policy compared to an immunity law, further differences appear in the scope of each. First, to address repeat offenders, most self-disclosure policies provide for a specific exception to penalty mitigation when a disclosing entity has either previously committed an environmental violation or has been provided with penalty mitigation in the past. In contrast, the majority of immunity laws only restrict the availability of penalty immunity if a "pattern" of previous environmental violations can be shown. In almost all instances though, the previous violations, either individually or as part of a pattern, have to have occurred within a specified time period and generally at the same facility as the currently disclosed violation.

Secondly, as an additional incentive to regulated entities to disclose environmental violations, both self-disclosure policies and immunity laws will provide some form of guarantee that the contents of the environmental audit report will be shielded from public scrutiny beyond the environmental agency to which the report was disclosed. Generally, most self-disclosure policies will allow the audit report to be available for public inspection, while the audit immunity laws almost universally create a privilege for the contents of the audit report. Thirdly, most self-disclosure policies specifically provide that the state agency will not request a voluntary environmental audit report to trigger a civil or criminal investigation, while most audit immunity laws do not make that guarantee.41

Finally, a significant portion of the state environmental self-disclosure policies and environmental audit immunity laws appear to allow an inconsistent result: that is, while penalty mitigation or immunity would clearly not be available in instances of self-disclosed criminal acts or omissions, penalty mitigation or immunity could be available when a previous violation was criminal, but dissimilar to the violation being disclosed.42

This allows for a situation where, strictly interpreting the policy or the law, a previous criminal act would not disqualify the entity from penalty mitigation or immunity, but a previous, similar, non-criminal act would. Other state policies and immunity laws deal with this issue by either proscribing penalty mitigation for any criminal act or omission (whenever committed) and allowing penalty reduction or waiver for repeat civil or administrative violations or by proscribing penalty mitigation or immunity both for any criminal act or omission and any repeat violations.43 Nevertheless, those states with a law that appears to allow inconsistent results when dealing with past violations can still look to the regulated entity's good faith or due diligence in complying with environmental requirements in deciding whether to grant immunity. Likewise, those states with such an apparently inconsistent self-disclosure policy always have discretion whether or not to apply the policy to the specific disclosed violation.

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Conclusion

After examining the currently effective environmental audit immunity laws and self-disclosure policies, Illinois' civil penalty mitigation law, and Oklahoma's environmental audit rule it is clear that the states are moving toward a more uniform set of requirements for regulated entities to obtain either penalty immunity or mitigation for voluntary disclosures of environmental violations. The more uniform requirements address EPA's concerns that many of the states' immunity laws did not meet the minimum requirements for federally delegated, authorized, or approved, state environmental programs.

The most widely amended sections of the states' environmental audit immunity laws pertain to: 1) the economic benefit received as a result of the disclosed violation and 2) the effect an imminent and substantial endangerment to human health or the environment, stemming from the disclosed violation, has on the availability of penalty immunity. Likewise, these two concerns have been, for the most part, similarly addressed in the states' self-disclosure policies. Overall, the major trend in the current amendments to the immunity laws or the recent enactment of self-disclosure policies has been to limit the scope of penalty immunity or penalty mitigation for environmental violations.

In confirmation of this trend, 15 attorneys general have issued opinions pertaining to their state's environmental audit immunity laws in response to EPA's concerns. In general, the opinions tend to emphasize the conditions of and exclusions to immunity, and thereby act to limit the extent of immunity provided by the state's audit immunity law.

This article does not enter into the policy debate on whether, and which of, the various provisions of environmental audit immunity laws or self-disclosure policies are good public policy. Instead, the article summarizes and categorizes the provisions contained in each law, rule or self-disclosure policy in a manner that should prove helpful for environmental practitioners, members of the business community, academics, and individuals with an interest in environmental audit immunity and mitigation laws and rules, or self-disclosure policies.

Notes

  1. In general, an "environmental audit is a systematic, documented, periodic and objective review by regulated entities of facility operations and practices related to meeting environmental requirements." Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violation, 65 Fed. Reg. 19617, 19625 (April 11, 2000) (internal quotes omitted).
  2. In general, an environmental management system "encompasses the regulated entity's documented systematic efforts, appropriate to the size and nature of its business, to prevent, detect, and correct violations . . . ." Id.
  3. John Lee & Bertram C. Frey, Environmental Audit Immunity Laws: A State-by-State Comparison, 28 Bureau of National Affairs Env't Rep. 331 (1997); John Lee & Bertram C. Frey, Environmental Audit Immunity Laws: A State-by-State Comparison, Bureau of National Affairs Chem. Reg. Rep. 381 (July 4, 1997).
  4. See Black's Law Dictionary 712 (7th ed. 1999) (referring to the distinction made between "use immunity" and "transactional immunity" in People v. Henson, Colo. App., 705 P.2d 996 ).
  5. See Id.
  6. The 1997 article (see supra note 3) analyzed the environmental audit immunity laws of: Colorado, Idaho, Kansas, Kentucky, Michigan, Minnesota, Mississippi, New Hampshire, New Jersey, Ohio, South Carolina, South Dakota, Texas, Utah, Virginia, and Wyoming.
  7. Colorado, Kentucky, Michigan, Minnesota, Mississippi, New Hampshire, Ohio, South Carolina, Texas, and Utah have enacted statutory revisions of their environmental audit immunity laws since the publication of the 1997 article. See supra note 3.
  8. Alaska, Arizona, Iowa, Nebraska, Nevada, Montana and Rhode Island have enacted environmental audit immunity laws since the publication of the 1997 article. See supra note 3. Arizona's law, however, never became effective because the law's effectiveness was conditioned upon enactment of an appropriations bill, which was never passed, that would have provided funding for administering the law.
  9. Alaska, Colorado, Iowa, Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, Ohio, Rhode Island, South Carolina, South Dakota, Virginia, and Wyoming have issued a clarifying Attorney General's statement and/or entered into a Memorandum of Agreement with the United States Environmental Protection Agency.
  10. Idaho's law sunset on December 31, 1997, Montana's law sunset on October 1, 2001, and New Hampshire's law sunset on July 1, 2003.
  11. Although Arizona's audit law never came into effect, Arizona does provide penalty mitigation for voluntarily disclosed violations through the Arizona Department of Environmental Quality's 1997 self-disclosure policy.
  12. As of early April 2004, self-disclosure policies are in effect in Arizona, California, Connecticut, Delaware, Florida, Hawaii, Indiana, Maine, Maryland, Massachusetts, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Tennessee, Vermont, and Washington. Copies of these policies are on file with the authors.
  13. O.A.C. § 52:2-11-7 (2000).
  14. 415 Ill. Comp. Stat. 5/42 (2004).
  15. As of early April 2004, only Alabama, Arkansas, Georgia, Idaho, Louisiana, Missouri, Montana, New Hampshire, North Dakota, West Virginia, and Wisconsin are without some form of environmental audit immunity law, civil penalty mitigation law, self-disclosure policy or rule. Arkansas, however, does have a privilege law.
  16. Alaska (Alaska Stat. §§ 09.25.450-490 (2002)), Colorado (Colo. Rev. Stat. §§ 13-25-126.5, 25-1-114.5 (2003)), Iowa (Iowa code Ann §§ 455K.1 to -12 (2002)), Kansas (Kan. Stat. Ann. §§ 60-3332 to -3339 (2002)), Kentucky (Ky. Rev. Stat. Ann. §§ 224.01 to -040 (Banks-Baldwin 2003), Michigan (Mich. Comp. Laws §§ 324.14801 -14809 (2003)), Minnesota (Minn. Stat. §§ 114C.20-31 (2003)), Mississippi (Miss. Code Ann §§ 49-2-71, 49-17-43, 49-17-427, 17-17-29 (2003)), Nebraska (Neb. Rev. Stat. §§ 25-21,254 -264 (2002)), Nevada (Nev. Rev. Stat. §§ 445C.020 -120 (2002)), New Jersey (N.J. Stat. Ann. §§ 13:1D-125 to -130 (2003)), Ohio (Ohio Rev. Code Ann. §§ 3745.70 -73 (West 2003)), Rhode Island (R.I. Gen. Laws §§ 42-17.8-1 to -4 (2002)), South Carolina (S.C. Code Ann. §§ 48-57-10 to -110 (2002)), South Dakota (S.D. Codified Laws §§ 1-40-33 to -37 (2003)), Texas (Tex. Rev. Civ. Stat. Ann. art. 4447cc (2001)), Utah (Utah Code Ann. §§ 19-7-101 to -109 (2002)), Virginia (Va. Code Ann. §§ 10.1-1198 to -1199 (2003)), Wyoming (Wy. S. 1977 s 35-11-1105 to -1106 (West 2002)), Idaho (Idaho Code §§ 9-801 to -811, sunset Dec. 31, 1997); Montana (Mont. Code Ann. §§ 75-1-1201 to -1206, sunset Oct. 1, 2001); New Hampshire (N.H. Rev. Stat. Ann. §§ 147-E:1 to -E:9, sunset July 1, 2003); and, Arizona (Ariz. Rev. Stat. §§ 49-191, and 49-191.01 to 49-191.07 (2000)) (never made effective) (on file with authors).
  17. Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violation, 65 Fed. Reg. 19617-19627 (April 11, 2000).
  18. Small Business Compliance Policy, 65 Fed. Reg. 19629-19634 (April 11, 2000).
  19. A search (early April 2004) on Lexis, a popular legal database, found fewer than one dozen articles that uniquely addressed penalty immunity in conjunction with the undertaking of an environmental audit and fewer than three dozen articles that addressed state and federal environmental self-disclosure policies.
  20. Wyoming and Minnesota (90-day deferment unless to enjoin imminent threat) prohibit prosecutions of civil actions to obtain injunctive relief to correct violations that were discovered during a voluntary environmental assessment or audit.
  21. Colorado, Kansas, Michigan, Minnesota, Nevada, Rhode Island and South Dakota grant some form of immunity or penalty mitigation in situations involving criminal conduct.
  22. Alaska, Colorado, Iowa, Kansas, Michigan, Nevada, Ohio, South Carolina and Texas specify who has the burden of proving that the disclosure is voluntary.
  23. Alaska, Colorado, Iowa, Kansas, Kentucky, Michigan, Nevada, Ohio, Rhode Island, South Carolina, Texas and Virginia specify the elements of a prima facie case for a voluntary disclosure.
  24. Proof of corrective action is required in: Minnesota, New Hampshire, New Jersey, Nevada, Rhode Island and South Carolina. Preventative actions are required in: Kentucky, Minnesota, Nevada, New Hampshire, Rhode Island and Utah.
  25. As of early April 2004, Alaska, Colorado, Iowa, Kentucky, Michigan, Minnesota, Mississippi, Nebraska, Nevada, Ohio, Rhode Island, South Carolina, Texas and Utah limit immunity if some form of economic benefit occurs as a result of the disclosed violation. New Hampshire's law, which sunset on July 1, 2003, also limited immunity when economic benefit occurred. In 1997, only Alaska, Iowa, Mississippi, Nebraska, Nevada, Rhode Island and Utah had such a provision.
  26. Michigan, Nevada, New Hampshire, New Jersey and Texas provide penalty mitigation instead of penalty immunity for disclosures required to be reported by law.
  27. U.S. EPA, Incentives for Self-Policing, Discovery, Correction and Prevention of Violations, 65 Fed. Reg. 19623-19624. U.S. EPA has stated its opposition to federal and state environmental audit immunity (and privilege) laws in a variety of forms. For example, the U.S. Senate Committee on Environment and Public Works held a hearing on October 30, 1997, regarding the activities of the federal government concerning voluntary environmental audits. Steven A. Herman, Assistant Administrator for Enforcement and Compliance Assurance, presented oral and written testimony on behalf of U.S. EPA, and a variety of other individuals offered their views. Review of Activities by the Federal Government Concerning Individuals or Organizations Voluntarily Submitting to Environmental Audits: Hearing Before the Senate Comm. On Environment and Public Works, 105th Cong. (1998).
  28. Memorandum from Steven A. Herman, Assistant Administrator, Office of Enforcement and Compliance Assurance, Robert Perciasepe, Assistant Administrator, Office of Water, Mary Nichols, Assistant Administrator, Office of Air and Radiation, and Timothy Fields, Acting Assistant Administrator, Office of Solid Waste and Emergency Response to Regional Administrators, Statement of Principles: Effect of State Audit Immunity/Privilege Laws on Enforcement Authority for Federal Programs (Feb. 14, 1997).
  29. See supra note 21.
  30. Alaska, Nevada, New Jersey, Rhode Island, Utah and Wyoming provide no immunity for civil violations if the act was knowingly or recklessly committed. Iowa, Kansas, Nebraska, South Carolina and South Dakota limit immunity if the civil violation was knowingly committed. All state statutes contain an exception to immunity for a criminal violation that was knowingly committed.
  31. Attorneys general opinions and other state agency opinions and statements referenced in this article are on file at the U.S. EPA Region 5, Office of Regional Counsel. All opinions and statements are, also, available to the public from the respective state agencies and the U.S. EPA. See supra the list of states accompanying note 9.
  32. In addition to requesting clarifying attorney general opinions and/or requiring certain statutory amendments, EPA entered into memoranda of agreement (MOA) with two states (Colorado and Montana) and issued letters of understanding to seven states (Alaska, Michigan, Minnesota, Ohio, Texas, Utah and Wyoming) that memorialized how the state would resolve each of EPA's concerns about the respective State's environmental audit law. In general, the agreements entered into between EPA and each State agency confirmed the administrative and/or legislative steps the agency would take to resolve all of EPA's concerns with the State's audit law. In particular, each document memorialized the specific statutory amendments (if applicable) the agency would seek, which issues would be resolved by a clarifying attorney general opinion or statement, and the state agency's commitment to administer its audit law in a manner so as not to violate minimum federal requirements for approved, authorized or delegated environmental programs. Some MOAs or letters contained additional commitments by a State agency. For example, the MOA between Colorado and EPA required Colorado to conduct a pilot self-audit law project and prepare an assessment of the effectiveness of the project after it was implemented. Copies of the MOAs and letters of understanding are on file with the authors.
  33. "The Attorney General has the statutory duty to give his opinion upon all questions of law submitted to him by the legislature, by either branch of the Legislature, by the governor, or by any other state officer; while such opinions do not have the force of law, and are therefore not binding on courts, they have been held to be binding on state agencies and officers." Mich. Stat. Ann. § 14.32 (Michie 2002) (citing Michigan Beer & Wine Wholesalers Ass'n v Attorney Gen., 142 Mich. App. 294, 370 N.W.2d 328, Mich. Ct. App. (1985) cert. denied, 479 U.S. 939, 93 L. Ed. 2d 371, 107 S. Ct. 420 (1986)).
  34. "In most jurisdictions statutes expressly impose upon the attorney general the duty of advising the chief executive and departmental heads. [H]is or her opinion . . . [w]hile it may be persuasive, . . . is neither conclusive nor binding. . . ." 7 Am. Jur. 2d Attorney General § 11 (2003). See also Scott M. Matheson, Jr., Constitutional Status and Role of the State Attorney General, 6 J. Law. & Pub. Pol'y 1 (1993) (" . . . as a practical matter the opinions work a prescriptive effect on state government administration and therefore carry legal force comparable to a court decision.").
  35. Arizona, California, Connecticut, Delaware, Florida, Hawaii, Indiana, Maine, Maryland, Massachusetts, Minnesota, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Tennessee, Vermont, and Washington. Minnesota's self-disclosure policy, as a practical matter, has been superceded by the state's audit law, therefore, this article does not provide a review of Minnesota's policy.
  36. In the following states environmental audit immunity legislation has been introduced, but, for various reasons, was never enacted: Alabama, Arizona, California, Florida, Hawaii, Maryland, Missouri, North Carolina, Oklahoma, Pennsylvania, Tennessee, Vermont and Wisconsin.
  37. Incentives for Self-Policing: Discovery, Disclosure, Correction, and Prevention of Violations, 65 Fed. Reg.19617, 19626. EPA's environmental audit policies can also be found at: http://www.epa.gov/fedrgstr/EPAFR-CONTENTS/2000/April/Day-11/contents.htm
  38. Only Maryland exclusively requires the violation to be discovered through an environmental audit.
  39. The EPA Self-Policing Policy, and the self-disclosure policies of California, Connecticut, Florida, Hawaii, Indiana, Massachusetts, New Mexico, North Carolina, Oregon, Pennsylvania and Tennessee allow for some form of penalty mitigation for criminal violations, while the self-disclosure policies of Arizona, Delaware, Maine, Maryland, New York, Vermont and Washington do not.
  40. While only New York and Washington specifically exclude penalty mitigation for civil or administrative violations committed recklessly, most states will presumably allow such reckless violations to receive penalty mitigation. Nonetheless, civil or administrative violations that could be considered "reckless with a total disregard for human health or safety" will presumably not be allowed penalty mitigation. All state policies presumably will not allow criminally reckless violations to receive penalty mitigation. In any event, most states will presumably look to the manner in which the disclosing facility is operated to determine whether a violation has been recklessly committed.
  41. For example, in Pennsylvania, which has a self-disclosure policy, the Pennsylvania Department of Environmental Protection will not request a voluntary environmental audit report to trigger a civil or criminal investigation, but voluntarily disclosed information, not otherwise confidential, is publicly available. In contrast, the environmental audit immunity law of South Carolina provides that, subject to exceptions outlined in the statute, an environmental audit report is privileged, while not specifying whether an environmental audit can be obtained by a regulatory agency without voluntary disclosure.
  42. For example, this apparent inconsistency exists in the language of the self-disclosure policies of Arizona, Delaware, Maine, Maryland, New York and Vermont, along with the EPA Small Business Compliance Policy, the audit immunity laws of Alaska, Kentucky, New Hampshire, New Jersey, Nevada, South Carolina, South Dakota and Utah, and the environmental audit civil penalty mitigation law of Illinois.
  43. For example, Arizona's self-disclosure policy excludes violations that "involve criminal conduct" but allows penalty mitigation or immunity for repeat violations, as long as the violation does not occur within three years of the same or similar violation. In contrast, New York's self-disclosure policy does not allow penalty mitigation in instances involving either repeat or criminal violations.

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