Table I: State Environmental Audit Laws, Rules and Policies (2004)
Table of Contents
- General Environmental Audit Immunity Law Provisions
- Environmental Audit Immunity Laws: Recent Amendments and Revisions
- Attorneys General Opinions
- State Environmental Audit Self-Disclosure Policies
- Guide to Tables
- Table I: State Environmental Audit Laws, Rules and Policies (2004)
- Table II State Environmental Audit Immunity Laws - U.S. EPA Regions I-III
- Table III: State Environmental Audit Immunity Laws - U.S. EPA Region IV
- Table IV: State Environmental Audit Immunity Laws - U.S. EPA Region V-VI
- Table V: State Environmental Audit Immunity Laws - U.S. EPA Region VII
- Table VI: State Environmental Audit Immunity Laws - U.S. EPA Region VIII
- Table VII: State Environmental Audit Immunity Laws - U.S. EPA Region IX-X
- Table VIII: Attorney General Opinions on State Audit Immunity Laws
- Table IX: State Environmental Self-Disclosure Policies - U.S. EPA Regions I-II
- Table X: State Environmental Self-Disclosure Policies- U.S. EPA Regions III-V
- Table XI: State Environmental Self-Disclosure Policies- U.S. EPA Regions VI-X
Environmental Audit Immunity Laws and Self-Disclosure Policies: A State-By-State Comparison (2004 Update)
b y John A. Lee and Bertram C. Frey **
Guide to Terms Used
- Yes/No - Item is explicitly addressed in the statute.
- Presumably - Item is not explicitly addressed, but can be inferred, to a high degree of certainty, from the language of the statute.
- Not specified, but presumably - Item is not explicitly addressed, but can be inferred from the language of the statute.
- Not specified - Item is not addressed in the statute.
- N/A - Not applicable.
|TABLE I: State Environmental Audit Laws, Rules and Policies as of early April 2004|
|State||Law, Rule or Policy||State||Law, Rule or Policy|
|ALASKA||Privilege and Immunity Law||NEBRASKA||Privilege and Immunity Law|
|ARIZONA (1)||Policy||NEVADA||Privilege and Immunity Law|
|ARKANSAS||Privilege Law||NEW HAMPSHIRE (6)||None|
|CALIFORNIA||Policy||NEW JERSEY (7)||Immunity Law|
|COLORADO||Privilege and Immunity Law||NEW MEXICO||Policy|
|FLORIDA||Policy||NORTH DAKOTA (8)||None|
|GEORGIA||None||OHIO||Privilege and Immunity Law|
|IDAHO (2)||None||OREGON||Privilege Law and Policy|
|ILLINOIS (3)||Privilege Law and Civil Penalty Mitigation Law||PENNSYLVANIA||Policy|
|INDIANA||Privilege Law and Policy||RHODE ISLAND||Immunity Law|
|IOWA||Privilege and Immunity Law||SOUTH CAROLINA||Privilege and Immunity Law|
|KANSAS||Privilege and Immunity Law||SOUTH DAKOTA||Privilege and Immunity Law|
|KENTUCKY||Privilege and Immunity Law||TENNESSEE||Policy|
|LOUISIANA||None||TEXAS||Privilege and Immunity Law|
|MAINE||Policy||UTAH||Privilege and Immunity Law|
|MASSACHUSETTS||Policy||VIRGINIA||Privilege and Immunity Law|
|MICHIGAN||Privilege and Immunity Law||WASHINGTON||Policy|
|MINNESOTA (4)||Immunity Law and Policy||WEST VIRGINIA||None|
|MISSISSIPPI||Privilege and Immunity Law||WISCONSIN (10)||None|
|MISSOURI||None||WYOMING||Privilege and Immunity Law|
- Arizona's Immunity Law was passed in 2000 and contained a sunset provision for 2004. Under the law, passage of an appropriations bill to fund the program to administer the law was a condition precedent to the law becoming effective. The legislature never passed the appropriations bill; consequently, the immunity law never took effect.
- Idaho's Immunity Law sunset on December 31, 1997. As of 2003, Idaho defers to EPA's Small Business Compliance Policy regarding environmental penalty mitigation.
- At the time of this writing (early April 2004), Illinois' privilege law was under review by the state's legislature.
- Minnesota's environmental audit law was enacted in 1995. At the time of enactment, section 114C.26 of the audit law incorporated by reference Minnesota Pollution Control Agency's policy on environmental auditing. In 1999, section 114C.26 was amended and the reference to the state's policy was omitted. In its place, the amendment requires that a self-disclosing entity follow procedures and criteria set forth in the amended statute. Although the Minnesota policy on environmental auditing has never been formally abolished, because the statutory procedures and criteria must now be used, the policy, as a practical matter, has been superceded.
- Montana's Immunity Law sunset on October 1, 2001, at which time the State's MOA with EPA regarding the law became obsolete.
- New Hampshire's Privilege and Immunity Law sunset on July 1, 2003.
- On August 17, 2003, New Jersey proposed an environmental audit self-disclosure rule, entitled "Penalty Reductions for Self-Disclosure of Violations," which was subsequently withdrawn in October 2003.
- While North Dakota does not have a general self-disclosure policy, the state has implemented a technical assistance program for hazardous waste generators. Under the program, subject to limitations, a compliance audit will be undertaken by the state.
- Oklahoma replaced its audit policy with an audit rule, effective June 1, 1997.
- On April 16, 2004, Wisconsin enacted a law that creates two environmental incentive programs—an Environmental Results Program (ERP) and an Environmental Improvement Program (EIP)—that provide a grace period for an entity in violation of Wisconsin's environmental laws and regulations to come into compliance. Wis. Stat. Ann. §§ 299.83, 299.85 (2004). Under the ERP provision, the act provides incentives to entities who voluntarily improve their environmental performance beyond complying with state environmental laws. To participate in the ERP, the act requires that the entity, among other things, implement an environmental management system (EMS), conduct an annual audit of its EMS, and submit an audit report to the Wisconsin Department of Natural Resources (DNR). Similarly, the EIP enables entities that self-disclose violations discovered during a voluntary environmental audit to avoid civil monetary penalties under specified circumstances.
For purposes relevant to this article, the predominant feature of both programs is deferred civil enforcement ( i.e ., a grace period) when the conditions of the applicable environmental incentive program are met. For a description of other environmental grace period laws, see Bertram C. Frey and Jennifer K. Harr, A Review of Environmental Grace Period and Amnesty Laws , 29 Env't Rep. (BNA) 51 (May 1, 1998). Under each program, the law generally prohibits, "for at least 90 days after the [DNR] receives a report of the [self-disclosed] violations that meets the requirements" of each program, the state from commencing a civil action to collect "forfeitures" (civil penalties) for violations of state environmental laws that are disclosed by the regulated entity in the report that qualifies the entity for participation in the program.
If the regulated entity corrects the disclosed violations within the 90-day period or, in the event the DNR agrees that compliance can not reasonably be achieved within 90 days, within the time provided in a negotiated compliance schedule, the law generally prohibits the state from ever bringing an action to collect forfeitures (civil monetary penalties) for the particular violations so corrected. This feature of the law can be construed as providing immunity from prosecution for civil penalties; however, if the entity fails to correct the violation within the 90 days or within the period required under the negotiated compliance schedule, then the entity is subject to civil action for penalties, and, where appropriate, for stipulated penalties for violations of the compliance schedule. In most situations, the state also may not begin a civil action to collect civil monetary penalties while the entity is complying with the terms of a compliance schedule.
It is the EIP, rather than the ERP, whose provisions most resemble those of state environmental immunity laws analyzed in this article. The analysis by the Wisconsin Legislative References Bureau of Senate Bill 61 (the precursor to this legislation) describes the features of the EIP as follows:
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* * * * To participate [in the EIP], a regulated entity must conduct an environmental compliance audit . . . . An environmental compliance audit is a systematic and objective review of the effects of a facility on the environment, including an evaluation of compliance with one or more environmental laws. The [law] requires the regulated entity to notify DNR before beginning an audit.
. . . [T]he regulated entity must submit a report to DNR describing the results of the environmental compliance audit. The regulated entity must complete the environmental compliance audit and submit the report to DNR within a year of notifying DNR that it will conduct the audit. At the time of submitting the report, more than two years must have elapsed since the regulated entity was prosecuted or issued a citation for violating an environmental laws. The report must describe all violations of environmental laws revealed by the environmental compliance audit and the actions taken or proposed to be taken to correct the violations. If the regulated entity proposes to take more than 90 days to correct the violations, the regulated entity must submit a proposed compliance schedule and proposed penalties that the regulated entity would agree to accept (stipulated penalties) if it violates the compliance schedule.
* * * * The law requires DNR to provide public notice and a period for public comment on any compliance schedule and stipulated penalties proposed by a regulated entity.
* * * *
* * * * The [law] authorizes [Wisconsin] to begin an action to collect forfeitures from a regulated entity that satisfies the requirements for participation in the Environmental Improvement Program at any time under several circumstances, including cases in which a violation presents an imminent threat, or may cause serious harm, to public health or the environment, cases in which DNR discovers the violation before the regulated entity reports the violation, and cases of repeated violations of the same environmental law. The [law] ends the Environmental Improvement Program on July 1, 2009.
The [law] does not prevent the state from prosecuting a criminal violation by a regulated entity that qualifies for participation in the Environmental Improvement Program, but the [law] requires DNR and [Wis.] DOJ to take into account the efforts of the regulated entity to comply with environmental laws in deciding whether to begin a criminal enforcement action and what penalty should be sought.
. . .[T]his [law] creates a new crime [for submitting a deceptive audit and] revises a penalty for an existing crime. . . .
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Enrolled Wisconsin Senate Bill 61, available at http://www.legis.state.wi.us/2003/data/SB-61.pdf (PDF) (37pp, 83K) (last visited April 29, 2004).