Table II State Environmental Audit Immunity Laws - U.S. EPA Regions I-III
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
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 II ENVIRONMENTAL AUDIT IMMUNITY LAWS- REGIONS I-III|
|STATE||New Hampshire||Rhode Island||New Jersey||Virginia|
|EPA REGION||R I||R I||R II||R III|
|A: GENERAL STATUTORY PROVISIONS|
|Immunity Statute||N.H. Rev. Stat. Ann. §§ 147-E:1 to -E:9 (1996 NH ALS 4) (sunset July 1, 2003)||R.I. Gen. Laws §§ 42-17.8-1 to -4 (2002)||N.J. Stat. Ann. §§ 13:1D-125 to -130 (2003)||Va. Code Ann. §§ 10.1-1198 to -1199 (2003)|
|Effective Date||July 1,1996, amended June 3,1999, sunset on July 1, 2003||July 7, 1997, amended July 10, 2001||December 22, 1995||March 24, 1995|
|Does immunity depend on voluntary disclosure?||Yes||Yes||No (14)||Yes|
|Voluntary disclosure to whom?||Department of Environmental Services (DES)||The Department of Environmental Management (DEM)||Department of Environmental Protection (DEP) or local government agency||State or local regulatory agency|
|Voluntary disclosure within what time period?||Within 30 days of discovery||Within 15 days (or shorter period if provided by law) of discovery||Within 30 days of discovery||Promptly after knowledge of violation obtained|
|Form the voluntary disclosure must take?||Contents of report to DES are specified||In writing||Not specified||Not specified|
|Who has burden for proving or disproving that disclosure was voluntary?||Not specified||Not specified||Not specified||Not specified|
|Standard of proof for rebuttal of presumption that disclosure was voluntary?||N/A||N/A||N/A||N/A|
|Elements of prima facie case for "voluntary" specified?||No||Yes||No||Yes|
|Environmental Audit Requirements|
|Must the knowledge of the violation have come from an environmental audit/assessment?||Yes||No (6)||No||Yes|
|Must audit be completed within a specified time?||6 months from date of commencement||No||N/A||No|
|Good faith standard for environmental audit performance?||No||No (7)||N/A||Yes (18)|
|Good faith standard for environmental audit disclosure?||No||No||N/A||Yes (18)|
|Does immunity apply if audit report fraud or misrepresentation occurs?||No, immunity does not apply if any of the reports submitted to the DES prove not to be true.||Not specified, but presumably no. The regulated entity must cooperate with the DEM and provide such information as necessary to determine applicability of act.||Presumably no. There must be full disclosure of all relevant circumstances surrounding the violation for immunity to apply.||No|
|Uninterrupted or continuous auditing specifically prohibited?||No||No (8)||No||No|
|Does immunity depend on notification that an environmental audit was to take place?||No||No||No||No|
|Environmental Audit Availability|
|Can an environmental audit report be obtained by regulatory agency without voluntary disclosure?||Not specified||No, subject to certain exceptions outlined in the statute. (9)||N/A||No, subject to certain exceptions outlined in the statute. (19)|
|Are submitted environmental audit reports available to public inspection?||Subject to exceptions outlined in the statute, an environmental audit report is privileged. The privilege does not apply to criminal proceedings. (4)||Presumably yes. The statute does not establish an audit report privilege.||N/A||Not specified, but presumably no.|
|B: IMMUNITY: GENERAL APPLICABILITY|
|To whom does immunity apply?||Any person (as defined) who owns/operates a facility, or conducts activities regulated under environmental law.||
The regulated entity, which includes a federal, state or municipal agency or facility regulated under federal or state environmental laws.
|Any person (as defined in the act)||Any person|
|Is Immunity Provided from:|
Extent of Immunity from Prosecution Provided
|(A) Administrative penalties?||Yes||Yes, DEM will not assess "gravity-based" penalties (10)||Yes||Yes ( #1 )|
|(B) Civil penalties?||Yes||Yes (11)||Yes||Yes ( #1 and #3 )|
|(C) Criminal penalties?||Yes||Yes (11) ( #5 )||No||
No ( #1 an
|(D) Injunctive relief?||No||No||No||No ( #1 and
|(E) Other actions?||No||No||No||No ( #1 and
|Is Immunity from Prosecution Provided for a Violation of:|
|(A) Administrative orders?||No ( #3 )||No ( #2 and
|No (15)||Yes ( #1 and #3 )|
|(B) Administrative consent decrees?||No||No ( #2 and
|No (15)||No ( #1 and
|(C) Civil Judicial orders?||No ( #3 )||No ( #2 and
|No (15)||No ( #1 and
|(D) Civil Judicial consent decrees?||No||No ( #2 and #3 )||No (15)||No ( #1 and
|(E) Permit provisions?||
Yes, permits and licenses issued under environmental laws
|Yes, if issued under a federal or state environmental statute that the DEM administers.||Yes, permits issued under environmental laws listed in the statute.||Yes ( #1 )|
|From violations of which laws, statutes, rules, or regulations is immunity from prosecution provided?||Environmental laws (specified in definitions section of the act) (5)||All federal and state environmental statutes that the DEM administers
( #2 )
|Minor (as defined) violations of environmental laws (as listed in the statute) or any rules promulgated thereunder. (15)||Environmental statutes and regulations
( #1 and #2 )
|Any enumerated exclusions to provided immunity?||Nothing in the act prevents the state from initiating a compliance action against a regulated entity for any disclosed or discovered violation.||No||Authority remains to seek damages, injunctive relief, to initiate a criminal investigation, or to obtain other appropriate relief.||The statute does not bar institution of civil action against an owner or operator for compensation for injury to person or property.|
|May penalties be assessed before a final determination that disclosure was voluntary?||Presumably no||Presumably no||Presumably no||Not specified|
|Must the owner/operator take remedial action for immunity to apply?||Yes||Yes||Yes||Yes ( #5 )|
|Must nature of remedial action be specified to regulatory agency?||Yes||No, but DEM determines if appropriate measures have been taken to remedy any harm due to the violation.||No||Yes ( #5 )|
|Time frame for remedial action to occur?||As soon as practicable within 90 days; if incapable within 90 days, then in accordance with negotiated agreement with DES.||Within 60 days from the date the violation disclosed. If more than 60 days is needed, DEM must be provided a written compliance schedule before elapse of original 60-day period.||A period of time, as provided by the DEP or local government, not to exceed 90 days. Ordinarily the period of time shall be no less than 30 days, this time limit may be shortened by the DEP for public health and safety reasons.||In a diligent manner in accordance with a compliance schedule submitted to regulatory agency.|
|Good faith or Due diligence standard for remedial action?||Absent good cause shown, remedial actions must be appropriate and implemented in accordance with the statute.||Yes, a due diligence standard (as defined in the act) encompasses the regulated entity's efforts to prevent, detect, and correct violations.||Not specified||Presumably yes (20)|
|Proof that corrective action was taken required as a follow up?||Yes. Violator must report to department within 10 days of completion of remedial action.||Yes. The regulated entity must certify in writing that the violation was corrected.||Written verification that compliance achieved may be required||No ( #5 )|
|Is the regulated entity required to undertake steps to prevent the recurrence of the violation?||Yes, absent good cause shown, prevention measures must be adequate and implemented in accordance with the statute.||Yes. The regulated entity must agree in writing to take steps to prevent recurrence.||No||No|
|C: EXCEPTIONS TO IMMUNITY|
|Does Immunity Apply When:|
Disclosed Violations: General Issues
|(A) Injunctive relief has been granted to remedy the violation?||Not specified, but presumably no. An injunction may be evidence of either: a lack of cooperation; a violation causing imminent or substantial endangerment; a lack of prompt reporting; or a lack of prompt remediation.||Not specified, but presumably no. An injunction may be evidence of either: a lack of cooperation; a violation causing imminent or substantial endangerment; a lack of prompt reporting; or a lack of prompt remediation.||Not specified, but presumably no. An injunction may be evidence of either: a violation causing imminent or substantial endangerment; a lack of prompt reporting; or a lack of prompt remediation.||Not specified, but presumably no. An injunction may be evidence of either: a lack of cooperation; a lack of prompt reporting; or a lack of prompt remediation.|
|(B) Violation results in an economic benefit or competitive advantage for the violator?||No, subject to penalty action for recovery of economic benefit (#2)||Yes. Immunity is for penalties over and above a regulated entity's economic gain. (#2 and #3 )||Yes||Yes|
|(C) Violations are required to be reported?||Not Specified ( #4 )||No (12) ( #4 )||Presumably yes (violations do not have to be voluntarily reported).||No|
|(D) Violation is either under investigation / discovered by an enforcement agency before it is reported?||No||No. The violation must be discovered and disclosed before it is under investigation, or discovered by, or subject to imminent discovery by a regulatory agency.||Presumably yes / Yes, unless the violation has existed for more than 12 months prior to discovery||Not specified
( #5 )
|(E) Violation is reported after an inspection or information request by federal, state, or local agency?||No||No (13)||Presumably yes||
Not specified, but presumably yes
|Is there a specific exception to penalty immunity when a disclosing entity has previously committed an environmental violation?||Yes, a compliance action or penalty action.||Yes, if the violation was previously identified in a judicial or administrative order or consent agreement, or otherwise documented by the DEM or EPA, including a conviction or plea agreement.
( #3 )
|Yes, if previous violation was identified in an enforcement action by DEP or a local government agency.||No|
|Must the previous environmental violation have resulted in an imposed penalty?||No||No||No||N/A|
|Does previous penalty immunity for an environmental violation affect current availability?||No||Yes, if penalty mitigation was previously received from the EPA, DEM or local agency. ( #3 )||No||No|
|Must the previous environmental violation have concerned a same or similar violation as the one voluntarily disclosed?||Yes, the same environmental law.||Yes||Yes (includes violation of the same permit requirement).||N/A|
|Must the previous environmental violation have concerned the same facility as the violation voluntarily disclosed?||No||Yes||Yes, for a violation not involving a permit; no for a violation of a permit requirement. (16)||N/A|
|Time frame for previous environmental violation to affect penalty immunity?||3 years||3 years||12-month period preceding the violation||N/A|
|Does a past criminal environmental violation specifically disqualify a disclosing entity from receiving penalty immunity?||Yes, a past criminal conviction for a violation of any environmental law.||No||No||No|
|Can statutory language be interpreted so that a previous civil or administrative violation will affect penalty immunity, while a previous criminal violation will not?||Yes. An exception to penalty immunity exists for a recurrence of a violation of the same environmental law, and no penalty immunity is provided for disclosed criminal violations knowingly, purposefully or recklessly committed.||No||Yes. An exception to penalty immunity exists for a recurrence of a violation of the same or a substantially similar violation, and no penalty immunity is provided for disclosed criminal violations.||No|
|State of Mind; Scienter:|
|Does Immunity Apply When Violation was:|
|(A) Negligently committed?||Presumably yes||Presumably yes||Presumably yes||Presumably yes|
|(B) Recklessly committed? (1)||Presumably yes||No ( #1 )||No||Presumably yes|
|(C) Reckless with a total disregard for human health or safety? (1)||Presumably yes||No ( #1 )||No||Presumably yes|
|(D) Intentionally or knowingly committed?||Presumably yes||No ( #1 )||No||Presumably yes|
|Does Immunity Apply When Violation was:|
|(A) Criminally negligent?||Yes||Presumably yes||No||No ( #6 )|
|(B) Criminally reckless? (2)||No||No ( #1 )||No||No ( #6 )|
|(C) Intentionally or knowingly committed?||No||No ( #1 and
|No||No ( #6 )|
|Serious / Imminent and Substantial Endangerment|
|Does immunity apply when a violation is serious?||No ( #5 )||No ( #1 )||No||Yes, though a civil action for compensation is allowed if serious violation.|
|Is "serious" defined?||No||No||A greater than minimal risk to public health, safety, and natural resources||Injury to person or property|
|If "serious" not defined, within what context is term used?||"Serious harm to human health or the environment"||"Serious actual harm"||N/A||N/A|
|Does immunity apply if violation caused imminent and substantial endangerment?||No ( #5 )||No ( #1 )||Not specified, but presumably no (17)||Not specified, but presumably no (17)|
|Is imminent and substantial endangerment defined?||No||No||N/A||N/A|
|Imminent and substantial endangerment to what?||Human health or the environment||Human health, public safety, or the environment||N/A||N/A|
|Pattern of Environmental Violations|
|Does immunity apply when violations constitute a pattern?||No||No (#3)||No||Presumably yes (21)|
|What constitutes a pattern?||"Multiple compliance actions or penalty actions for violations of any environmental law." Multiple violations per se do not constitute a pattern.||"Pattern" is not defined, but it must be a pattern of federal, state, or local violations by a regulated entity.||Same or substantially similar violations that are not isolated incidents, and reasonably indicate a pattern of illegal conduct.||N/A|
|Within what time frame is a pattern established?||Within the 3 years preceding discovery of violation||Within the past 3 years||At any time||N/A|
|Does "pattern" require the violation at issue or one substantially similar to have been repeated?||No||No||Yes||N/A|
|Must the violations have occurred at the same facility?||No||No||No||N/A|
|Does pattern of violations include multiple settlement agreements related to the same alleged violation?||No||Yes (the settlement agreements do not have to relate to the same violation).||Presumably yes||N/A|
|Does pattern of violations include multiple violations of settlement agreements?||No||Presumably yes||Presumably yes||N/A|
|Administrative and Civil Judicial Consent Orders and Decrees|
|After voluntary disclosure, must settlement agreements be memorialized in an administrative or civil judicial consent order or decree?||No, but need agreement with DES for remediation schedule longer than 90 days.||No, but DEM may require the regulated entity to enter into a publicly available written agreement, administrative consent order, or judicial consent degree when compliance measures are complex or lengthy. ( #3 )||No||No|
|Does penalty mitigation apply, if the consent order or decree required after voluntary disclosure is violated?||N/A||No ( #3 )||N/A||N/A|
|Does immunity apply if a consent order or decree has been violated prior to voluntary disclosure?||Presumably yes||No, if a violation is part of a pattern or repeat violation ( #3 )||No, if decree is result of previous enforcement action for same/similar violation at same facility within previous 12-month period.||Presumably yes|
|Can consent order or decree still be mandated by a governmental agency even with a voluntary disclosure?||Presumably yes, if part of compliance action undertaken by state.||Yes, where compliance is complex or a lengthy schedule for attaining compliance is required.||Not specified||Not specified|
|Does immunity apply if violation found pursuant to complying with terms of consent order or decree? (3)||Presumably yes||No||Presumably yes||Yes, unless disclosure required by decree|
|Mitigation of Penalties|
|Are imposed penalties not subject to immunity, nevertheless subject to mitigation?||Not specified||Not specified, but any act or omission for which the regulated entity has previously received penalty mitigation from the EPA or the DEM or local agency, is not subject to immunity.||Not specified||Not specified|
|D: STATE ISSUES|
|Does immunity apply in case of state primacy, where immunity will result in a state program less stringent than federal program?||No||No||Not specified||The state law must be consistent with requirements of federal law|
|Statute/law void after certain date? (Sunset provision?)||No||No||No||No|
- Recklessness involves a greater degree of fault than negligence, but a lesser degree of fault than intentional wrongdoing. Recklessness is equivalent to gross negligence.
- Gross negligence so extreme that it is punishable as a crime.
- This question addresses the preclusion of immunity when a violation is found pursuant to complying with the terms of a consent decree or order. The violator still has to satisfy the state's specified requirements for immunity to apply
- (New Hampshire) Pursuant to New Hampshire Revised Statutes § 147 E:3 an environmental audit report is privileged. A list of exceptions to this rule and an enumeration of nonprivileged matters are found in sections §§ 147-E:4 and 147-E:5, respectively.
- (New Hampshire) RSA 125-C, 125-D, 125-I, those portions of 141-E implemented by the DES, 146-C, 147-B, 149-M, 481, 482, 483-B, 485, 485-A, 485-C, and 487.
- (Rhode Island) The violation can be discovered through an environmental audit (as defined in the act) or through a systematic procedure that reflects the regulated entity's due diligence (as defined in the act) in preventing, detecting and correcting violations. The regulated entity must provide accurate and complete documentation to DEM that shows how it exercised due diligence.
- (Rhode Island) There is a due diligence standard that encompasses the regulated entity's systematic efforts to detect violations. The environmental audit is a systematic review by the regulated entity of the facility's operations and occupational practices related to achieving compliance with environmental requirements.
- (Rhode Island) In addition, an environmental audit is a periodic review by the regulated entity.
- (Rhode Island) Exceptions to Rhode Island's audit immmunity law are enumerated at R.I. Gen. Laws § 42-17.8-4.
- (Rhode Island) A "gravity-based penalty" is any portion of a penalty over and above an entity's economic gain resulting from noncompliance with any statutes administered by the DEM. The DEM may forgive the entire penalty for violations that meet the conditions of the act and, in the opinion of the DEM, do not merit any penalty due to an insignificant economic benefit from the violation.
- (Rhode Island) The regulated entity will not be referred to the appropriate prosecuting authority for a civil or criminal action if the entity is in compliance with the terms of the required consent order (see supra Section C, "Consent Decrees and Orders") and the act.
- (Rhode Island) Examples of particular violations required to be reported include, inter alia: (1) emissions violations detected through a required continuous emission monitor (or alternative monitor established in a permit); (2) violations of National Pollutant Discharge Elimination System (NPDES) discharge limits detected through required sampling or monitoring; and (3) violations discovered through a compliance audit required to be performed by the terms of an administrative or court order or settlement agreement.
- (Rhode Island) In addition, there must be discovery and disclosure before: (1) notice of a citizen's suit; (2) the filing of a complaint by a third party; or (3) the reporting of the violation by a "whistle blower" employee.
- (New Jersey) Immunity for minor violations (as defined in Sec. 5 of the act) only. For minor violations not voluntarily disclosed, a penalty will be imposed if compliance is not achieved within the period of time specified in the notice of violation (Sec. 3a).
- (New Jersey) The activity or condition constituting the violation can not have existed for more than 12 months prior to the date of discovery of the violation.
- (New Jersey) Under New Jersey's Coastal Area Facility Review Act; Freshwater Wetlands Protection Act; Wetlands Act of 1970; and Flood Hazard Area Control Act, or any rules or regulations promulgated thereunder or permit issued pursuant thereto, the violation can be at any site.
- (New Jersey, Virginia, South Carolina) Although "imminent and substantial endangerment" is not addressed in the statute, there is no immunity for a serious violation, and a violation causing imminent and substantial endangerment might be considered a serious violation. "Serious" is not explicitly defined in the statute.
- (Virginia) The relevant part of the Virginia statute states: "Immunity shall not be accorded if it is found that the person making the voluntary disclosure has acted in bad faith." It is not clear from the wording if the "bad faith" requirement extends beyond the act of either producing or disclosing the environmental audit itself.
- (Virginia) Section 10.1-1198 (B) of the Virginia Code (Va. Code Ann. § 10.1-1198(B)) provides an exception to the state's voluntary environmental assessment privilege; specifically, the privilege does not extend to a document, portion of a document or information that: (1) demonstrates a clear, imminent and substantial danger to the public health or the environment; (2) is required by law or prepared independently of the voluntary assessment process; or (3) that was collected, generated or developed in bad faith.
- (Virginia) See supra text accompanying note 18.
- (Virginia) Id. It is unclear if a pattern of violations could be considered "bad faith."li>