Table III: State Environmental Audit Immunity Laws - U.S. EPA Region IV
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 III ENVIRONMENTAL AUDIT IMMUNITY LAWS- REGION IV|
|EPA REGION||R IV||R IV||R IV|
A: GENERAL STATUTORY PROVISIONS
|Immunity Statute||S.C. Code Ann. §§ 48-57-10 to -110 (2002)||Ky. Rev. Stat. Ann. §§ 224.01 to -040 (Banks-Baldwin 2003)||Miss. Code Ann §§ 49-2-71, 49-17-43, 49-17-427, 17-17-29 (2003) (22)|
|Effective Date||June 4,1996, amended May 1, 2000||July 15, 1996. amended June 21, 2001||July 1, 1995, amended January 20, 2003|
|Does immunity depend on voluntary disclosure?||Yes||Yes||Yes|
|Voluntary disclosure to whom?||Agency having regulatory authority over the disclosed violation||"The cabinet"||Department of Environmental Quality (DEQ) or Commission on Environmental Quality (CEQ)|
|Voluntary disclosure within what time period?||Within 14 days following reasonable investigation||Prompt reporting of voluntary discovery of violation||Promptly after knowledge of violation obtained|
|Form the voluntary disclosure must take?||Oral or written||Not specified||Not specified|
|Who has burden for proving or disproving that disclosure was voluntary?||The regulated entity||Not specified||Not specified|
|Standard of proof for rebuttal of presumption that disclosure was voluntary?||Not specified||N/A||N/A|
|Elements of prima facie case for "voluntary" specified?||Yes||Yes||No|
Environmental Audit Requirements
|Must the knowledge of the violation have come from an environmental audit/assessment?||No||Yes||Yes|
|Must audit be completed within a specified time?||If audit occurs, it must have a specified beginning and end date.||No||No|
|Good faith standard for environmental audit performance?||No||No||Yes|
|Good faith standard for environmental audit disclosure?||No||No||Not Specified|
|Does immunity apply if audit report fraud or misrepresentation occurs?||Not specified, but presumably no. A person or entity making the disclosure must cooperate with appropriate agency in investigation of disclosed issues.||Not specified, but presumably no. Owner/operator of facility must cooperate with the cabinet and provide information necessary to determine applicability of the act.||No, there is a good faith standard for self-evaluation.|
|Uninterrupted or continuous auditing specifically prohibited?||No, but the investigation must be "reasonable."||No||No|
|Does immunity depend on notification that an environmental audit was to take place?||No||No||No|
Environmental Audit Availability
|Can an environmental audit report be obtained by regulatory agency without voluntary disclosure?||Not specified||Not specified||Not specified|
|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 investigations or proceedings. (4)||Subject to exceptions outlined in the statute, an environmental audit report is privileged. The privilege does not apply to criminal proceedings. (5)||Subject to exceptions outlined in the statute, an environmental audit report is privileged. The privilege does not apply to criminal proceedings. (8)|
B: IMMUNITY: GENERAL APPLICABILITY
|To whom does immunity apply?||A person or entity||"A facility"||The person making the disclosure|
|Is Immunity Provided from:||
Extent of Immunity from Prosecution Provided
|(A) Administrative penalties?||Yes||No||Reduction only (9)|
|(B) Civil penalties?||Yes||Yes||No (9)|
|(C) Criminal penalties?||No||No||No (9)|
|(D) Injunctive relief?||No ( #1 )||No||No (9)|
|(E) Other actions?||No||No||No (9)|
Is Immunity from Prosecution Provided for a Violation of:
|(A) Administrative orders?||No||No||Yes|
|(B) Administrative consent decrees?||No||No||Yes|
|(C) Civil Judicial orders?||No||No||Yes|
|(D) Civil Judicial consent decrees?||No||No||Yes|
|(E) Permit provisions?||Yes, if issued under environmental laws. (#3)||Yes, if issued under the states environmental protection statute or the administrative regulations promulgated pursuant thereto.||Yes|
|From violations of which laws, statutes, rules, or regulations is immunity from prosecution provided?||Federal, state, regional and local laws, regulations and ordinances pertaining to environmental matters||"Violations of this chapter [Chapter 224 -Environmental Protection], or administrative regulations pursuant theretofore"||Federal, state, or local statutes, rules or regulations, or any issuances in pursuance thereof|
|Any enumerated exclusions to provided immunity?||No immunity from criminal penalties. Also, if full compliance is not certified, the appropriate state agency retains discretion to assess penalties.||1. Recovery of actual damages resulting from violations is still permitted. 2. No immunity if penalty mitigation was already received from a federal, state, or local agency.||Any provisions of the immunity section regarding liability for costs of clean-up, removal, remediation, or abatement of pollution or hazardous or solid waste is limited by statutory exemptions from liability and rules adopted thereto. (10)|
|May penalties be assessed before a final determination that disclosure was voluntary?||No||Not specified||Not specified|
|Must the owner/operator take remedial action for immunity to apply?||Yes ( #3 and #4 )||Yes||Yes|
|Must nature of remedial action be specified to regulatory agency?||No, but full compliance must be certified by the appropriate state agency.||No||No|
|Time frame for remedial action to occur?||Violation must be corrected in a "diligent" manner. Full compliance must be certified by the department as occurring in a reasonable time.||60 days, unless a shorter time is necessary to protect health, safety or environment; longer time upon approval of the cabinet||Corrective action must be pursued with "due diligence."|
|Good faith or Due diligence standard for remedial action?||Yes||Not specified||Yes|
|Proof that corrective action was taken required as a follow up?||Yes, compliance must be certified by the appropriate state agency.
( #3 )
|Is the regulated entity required to undertake steps to prevent the recurrence of the violation?||No ( #3 )||Yes. The owner must agree in writing to take steps to prevent recurrence.||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.
( #1 and #3 )
|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.||Yes. 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.|
|(B) Violation results in an economic benefit or competitive advantage for the violator?||No, where there is substantial economic benefit and clear economic advantage.
( #4 )
|No, where significant economic benefit which gives the violator a clear economic advantage||No|
|(C) Violations are required to be reported?||No||No||No|
|(D) Violation is either under investigation / discovered by an enforcement agency before it is reported?||Not specified||No (6)||Not specified / No|
|(E) Violation is reported after an inspection or information request by federal, state, or local agency?||Not specified, but presumably yes||No||Not specified, but presumably no|
|Is there a specific exception to penalty immunity when a disclosing entity has previously committed an environmental violation?||No, unless immunity was granted for the previous violation. ( #4 )||Yes||Yes|
|Must the previous environmental violation have resulted in an imposed penalty?||N/A||No||No|
|Does previous penalty immunity for an environmental violation affect current availability?||Yes, if immunity from civil or administrative penalties was previously granted by the South Carolina Department of Health and Environmental Control (DHEC).
( #4 )
|Yes, if penalty mitigation was previously received from a federal, state or local agency.||No, but the CEQ will take into consideration past performance history.|
|Must the previous environmental violation have concerned a same or similar violation as the one voluntarily disclosed?||Yes, a similar prior violation.
( #4 )
|Yes, the same or closely related violation.||Yes, a second or subsequent violation, after the first violation has ceased, as determined by the CEQ, of the same statutory provision, regulation, permit condition, or condition in an order of the CEQ.|
|Must the previous environmental violation have concerned the same facility as the violation voluntarily disclosed?||Yes||Yes||Yes|
|Time frame for previous environmental violation to affect penalty immunity?||1 year||3 years||3 years|
|Does a past criminal environmental violation specifically disqualify a disclosing entity from receiving penalty immunity?||No||No||No, but the CEQ will take into consideration past performance history.|
|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 the same violation, if that previous violation received penalty immunity from DHEC, and no penalty immunity is provided for disclosed criminal violations.||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. The CEQ will take into consideration past performance history.|
State of Mind; Scienter:
|Does Immunity Apply When Violation was:||
|(A) Negligently committed?||Presumably yes ( #4 )||Presumably yes||Presumably yes|
|(B) Recklessly committed? (1)||Presumably yes ( #4 )||Presumably yes||Presumably yes|
|(C) Reckless with a total disregard for human health or safety? (1)||Presumably No ( #4 )||Presumably yes||Presumably yes|
|(D) Intentionally or knowingly committed?||No ( #4 and
|Presumably yes||Considered by CEQ|
|Does Immunity Apply When Violation was:||
|(A) Criminally negligent?||No||No||No (11)|
|(B) Criminally reckless? (2)||No||No||No (11)|
|(C) Intentionally or knowingly committed?||No||No||No (11)|
Serious / Imminent and Substantial Endangerment
Does immunity apply
(#2 and #4 )
|Is "serious" defined?||Significant environmental harm or public health threat
( #2 and #4 )
|If "serious" not defined, within what context is term used?||N/A||"Serious actual harm"||The CEQ shall "consider the seriousness of the violation, including harm to environment and hazard to health and safety of public."|
|Does immunity apply if violation caused imminent and substantial endangerment?||Not specified, but presumably no ( #2 and #4)||No||No|
|Is imminent and substantial endangerment defined?||N/A||No||No|
|Imminent and substantial endangerment to what?||N/A||Human health or environment||The public health, safety or welfare of the environment|
Pattern of Environmental Violations
|Does immunity apply when violations constitute a pattern?||Presumably yes (#4)||No||No|
|What constitutes a pattern?||N/A||Violations of federal, state or local environmental law or regulation previously identified in a judicial or administrative order, consent agreement or agreed order, complaint, notice of violation, conviction or plea agreement.||A "repeat violation," defined as a second or subsequent violation after the first violation has ceased.|
|Within what time frame is a pattern established?||N/A||Within the past 5 years||Within the past 3 years|
|Does "pattern" require the violation at issue or one substantially similar to have been repeated?||N/A||No||Yes. As determined by the CEQ, a violation must be of the same statutory provision, regulation, permit condition, or condition in a CEQ order.|
|Must the violations have occurred at the same facility?||N/A||No||Yes|
|Does pattern of violations include multiple settlement agreements related to the same alleged violation?||N/A||Yes||Presumably yes|
|Does pattern of violations include multiple violations of settlement agreements?||N/A||Presumably yes||Presumably yes|
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 must cooperate with agency in investigation of issues disclosed and obtain certificate of full compliance by the department.||No, but owner/operator of facility must cooperate with the cabinet.||No, but person making the disclosure must cooperate with DEQ and CEQ.|
|Does penalty mitigation apply, if the consent order or decree required after voluntary disclosure is violated?||No, (must cooperate to make disclosure voluntary)||No, (must cooperate for immunity to apply)||No, (must cooperate for penalty reduction to apply)|
|Does immunity apply if a consent order or decree has been violated prior to voluntary disclosure?||Yes, (but no immunity for violation of a consent decree).||No, if a violation is part of a pattern.||Presumably yes, but past performance history considered by the CEQ.|
|Can consent order or decree still be mandated by a governmental agency even with a voluntary disclosure?||Not specified||Not specified||Not specified|
|Does immunity apply if violation found pursuant to complying with terms of consent order or decree? (3)||Yes, unless disclosure required by decree||No||No|
Mitigation of Penalties
|Are imposed penalties not subject to immunity, nevertheless subject to mitigation?||Yes, the South Carolina Department of Health and Environmental Control retains discretion.||Not specified, but acts or omissions for which the facility has received penalty mitigation from a federal, state or local agency are not subject to immunity.||Yes, the act requires mitigation, not immunity.|
D: STATE ISSUES
|Does immunity apply in case of state primacy, where immunity will result in a state program less stringent than federal program?||Not specified||Not specified||Not specified|
|Statute/law void after certain date? (Sunset provision?)||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
- (South Carolina) Exceptions to the environmental audit report privilege are contained in §§ 48-57-30, 48-57-40, and 48-57-50 of the South Carolina Code.
- (Kentucky) Under § 224.01-040(3) of the Kentucky Revised Statutes, an environmental audit report is privileged information; however, the privileged described in this section does not apply when the privilege is waived expressly or by implication, as described in §223.01-040(4), or when the information in the report is required to be collected. Ky. Rev. Stat. Ann. §§ 224.040(3)-(4) (Banks-Baldwin 2003).
- (Kentucky) The disclosure must occur prior to: (1) the filing of a citizen's suit under federal or state law; (2) the filing of a complaint by a third party; (3) a report to a federal, state or local agency of the violation, by an employee not authorized to speak on behalf of the facility; or (4) the imminent discovery of the violation by a regulatory agency.
- (Mississippi) Under Section 49-2-51, Mississippi Code of 1972, in assessing penalties for Section 17-17-29 (covers violations of sections 17-17-1 through 17-17-47); Section 49-17-43 (covers violations of Sections 49-17-1 through 49-17-43); and Section 49-17-427, the State Commission on Environmental Quality shall consider, at a minimum, a number of factors including, whether compliance was discovered and reported as a result of a voluntary self-evaluation. If so, penalties can be reduced (not complete immunity) to a de minimis amount, subject to the conditions outlined in the chart.
- (Mississippi) Exceptions to the environmental audit report privilege are contained in §§ 49-2-71(1)(a)-(b) and 49-2-71(2).
- (Mississippi) If the requirements of the statute are met, only those penalties determined by the Mississippi Commission on Environmental Quality (except for economic benefit) will be reduced to a de minimus amount. See supra text accompanying note 7.
- (Mississippi) Section 49-17-42 of the Mississippi Annotated Code provides certain exemptions from liability for "owners" (defined as "any lender or holder who maintains indicia of ownership to protect an interest in property, facility, or other person and who does not participate in the management of the property, facility, or other person.")
- (Mississippi) See supra text accompanying note 9.