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Table IV: State Environmental Audit Immunity Laws - U.S. EPA Region V-VI

Table of Contents

Environmental Audit Immunity Laws and Self-Disclosure Policies: A State-By-State Comparison (2004 Update)
by John A. Lee and Bertram C. Frey **

Guide to Terms Used
TABLE IV ENVIRONMENTAL AUDIT IMMUNITY LAWS- REGIONS V-VI
STATE Michigan Minnesota Ohio Texas
EPA REGION R V R V R V R VI
A: GENERAL STATUTORY PROVISIONS
Immunity Statute Mich. Comp. Laws §§ 324.14801-14809 Minn. Stat. §§ 114C.20-31 Ohio Rev. Code Ann. 3745.70 and 3745.72 of Rev. code (1996) Tex. Rev. Civ. Stat. Ann. § 4447cc (Vernon 2001)
Effective Date March 8, 1996, amended November 1997 June 1, 1995, amended March 22, 1996 and August 1, 1999 March 13, 1997, amended September 30, 1998 May 23, 1995, amended September 1, 1997
Voluntary Defined
Does immunity depend on voluntary disclosure? Yes Not specified. Facility must qualify for participation in the state's environmental audit program (7) Yes ( #1 ) Yes
Voluntary disclosure to whom? Appropriate state or local agency The commissioner of the Minnesota Pollution Control Agency (PCA) (8) The director of the state agency that has jurisdiction over alleged violation "An agency with regulatory authority with regard to the violation disclosed"
Voluntary disclosure within what time period? Promptly after knowledge of violation obtained Within 45 days after completion of the audit or self-evaluation Promptly after information of violation obtained by the owner/operator Promptly after knowledge obtained
Form the voluntary disclosure must take? Not specified Report submitted to the commissioner following listed specifications In writing, hand delivered or sent by certified mail, and must contain all of the requirements specified in the section In writing, by certified mail
Who has burden for proving or disproving that disclosure was voluntary? The state or local agency has burden of rebutting presumption of voluntary disclosure; a decision by the appropriate agency that disclosure was not voluntary is subject to judicial review. ( #5 ) N/A Owner/operator asserting entitlement to immunity has burden of proving that entitlement Person claiming immunity must make prima facie showing; burden then shifts
Standard of proof for rebuttal of presumption that disclosure was voluntary? Adequate showing that disclosure was not voluntary
( #5 )		 N/A Preponderance of the evidence Preponderance of evidence; beyond a reasonable doubt in criminal cases.
Elements of prima facie case for "voluntary" specified? Yes N/A Yes Yes
Environmental Audit Requirements
Must the knowledge of the violation have come from an environmental audit/assessment? Yes Yes, from environmental audit or self-evaluation; additional requirements for major facilities are provided in the statute. Yes Yes
Must audit be completed within a specified time? No No Within a reasonable time not to exceed 6 months unless a written request for an extension is approved Within 6 months, unless extension approved
Good faith standard for environmental audit performance? No No Yes. Data, documents, records, or plans necessary to the audit must be collected, made, and maintained in good faith. No
Good faith standard for environmental audit disclosure? No No Yes ( #2 ) No
Does immunity apply if audit report fraud or misrepresentation occurs? Presumably no because a person who uses the law to commit fraud is guilty of a misdemeanor punishable by a fine of not more than $25,000. No, if a false statement is made in the report. A person found to have knowingly made a false material statement or representation is subject to administrative penalties. Presumably no. Disclosures must be made in good faith. Not specified, but presumably no. A person making the disclosure must cooperate with appropriate agency in investigation of disclosed issues.
Uninterrupted or continuous auditing specifically prohibited? No No No No
Does immunity depend on notification that an environmental audit was to take place? Yes No No Yes
Environmental Audit Availability
Can an environmental audit report be obtained by regulatory agency without voluntary disclosure? Yes. State or local enforcement officials can request a non-voluntary disclosure of the audit report. Presumably yes. Submittal of the audit report to the commissioner invokes the qualified privilege. Yes. If a government agency has a substantial need for information in the audit to protect public health or to prevent substantial harm, and the agency is unable to obtain the substantial equivalent of the information by other means without unreasonable delay or expense. 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 as to third parties. (9) Subject to exceptions outlined in the statute, an environmental audit report is privileged. The privilege does not apply to criminal investigations or proceedings. (16) Subject to exceptions outlined in the statute, an environmental audit report is privileged. (19)
B: IMMUNITY: GENERAL APPLICABILITY
To whom does immunity apply? The person making the disclosure The owner or operator of the facility The owner or operator of facility or property "Individual, corporation, business trust, partnership, association, any other legal entity"
Is Immunity Provided from:
Extent of Immunity from Prosecution Provided
(A) Administrative penalties? Yes Yes Yes Yes
(B) Civil penalties? Yes Yes Yes Yes
(C) Criminal penalties? Yes, for negligent acts only Yes (10) ( #1 ) No No
(D) Injunctive relief? No ( #2 ) Yes, a 90 day deferment if proper report submitted, unless to enjoin imminent threat to health or environment.
( #3 )		 No No
(E) Other actions? Yes, civil, administrative and criminal (negligent only) fines. Presumably deferred No No (technical or remedial provisions ordered by a regulatory authority)
Is Immunity from Prosecution Provided for a Violation of:
(A) Administrative orders? No No (11) No No
(B) Administrative consent decrees? Presumably yes (5) No (11) Not specified No
(C) Civil Judicial orders? No No (11) No No
(D) Civil Judicial consent decrees? Presumably yes (5) No (11) Not specified No
(E) Permit provisions?

Presumably yes (5)
( #1 )

 Yes, permit issued by agency Yes Yes, if issued under environmental health or safety laws.
From violations of which laws, statutes, rules, or regulations is immunity from prosecution provided? Specific laws listed, and rules promulgated thereunder (6) Laws administered by the agency, or rules adopted by the agency, or local government ordinances under authority of state environmental law Environmental laws of Ohio (17) and, any federal or local counterparts or extensions of those laws. Federal or state environmental health & safety laws and the rules, regulations, regional or local laws adopted pursuant thereto
Any enumerated exclusions to provided immunity? No immunity from criminal penalties or fines for gross negligence; and responsibility to pay damages, correct violations and conduct remediation remains. The act does not preclude the state from taking enforcement action for violations discovered by the state before the report was submitted or against persons who commit violations. Payment of (a) damages for harm to persons, property, or environment; or (b) reasonable costs incurred by govt. agency in response to disclosure; or, responsibility for remediation or clean-up of environmental harm Technical or remedial provisions ordered by regulatory authority
May penalties be assessed before a final determination that disclosure was voluntary? No N/A (12) No Not specified
Remedial Actions
Must the owner/operator take remedial action for immunity to apply? Yes Yes Yes Yes
Must nature of remedial action be specified to regulatory agency? No Yes, in brief description of proposed actions No No
Time frame for remedial action to occur? Promptly--within a reasonable time for permit application.
( #1 )		 Within 90 days after report received by the commissioner, or if incapable within 90 days, in accordance with approved performance schedule. As quickly as practicable or within a reasonable period as ordered by the director of the govt. agency that has jurisdiction. "Within a reasonable time"
Good faith or Due diligence standard for remedial action? Yes, good faith effort to achieve compliance; compliance pursued with due diligence.
( #1 )		 Not specified (13) "Reasonable good faith effort" Yes, remediation must be pursued with due diligence.
Proof that corrective action was taken required as a follow up? No Yes. The owner/operator of the facility must certify to the commissioner that the violations have been corrected. No No
Is the regulated entity required to undertake steps to prevent the recurrence of the violation? No Yes, the steps must be described in the report submitted to the commissioner. 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 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 or a lack of prompt reporting. 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 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 No No immunity for the economic benefit component of the administrative and civil penalties. No immunity where violation results in a substantial economic benefit which gives violator a clear business advantage.
(C) Violations are required to be reported? Not specified
( #3 )		 No ( #2 ) No ( #1 ) Presumably yes, unless disclosure is a report to a regulatory agency required solely by condition of enforcement order or decree.
(D) Violation is either under investigation / discovered by an enforcement agency before it is reported? Yes, if not aware of the investigation / Not specified Not specified / No No, if disclosing party knows or has reason to know about the investigation or enforcement action. No
(E) Violation is reported after an inspection or information request by federal, state, or local agency? Not specified, but presumably yes Not specified, but presumably yes, unless violation discovered by state during inspection. No, if government agency has commenced an investigation or enforcement action, and disclosing party knows or has reason to know about it. Not specified, but presumably yes, if not part of an investigation of the violation disclosed.
Previous Violations:
Is there a specific exception to penalty immunity when a disclosing entity has previously committed an environmental violation? No Yes No No
Must the previous environmental violation have resulted in an imposed penalty? N/A No. Immunity, however, does not apply if the disclosed violation is similar to one involved in a previous enforcement action that resulted in the imposition of a monetary penalty. N/A N/A
Does previous penalty immunity for an environmental violation affect current availability? No No No No
Must the previous environmental violation have concerned a same or similar violation as the one voluntarily disclosed? N/A Yes N/A N/A
Must the previous environmental violation have concerned the same facility as the violation voluntarily disclosed? N/A Yes N/A N/A
Time frame for previous environmental violation to affect penalty immunity? N/A 3 years if previous violation resulted in the imposition of a monetary penalty; 1 year if monetary penalty was not imposed after resolution of an enforcement action; or 1 year if disclosed violation was previously disclosed in an audit report. (14) N/A N/A
Does a past criminal environmental violation specifically disqualify a disclosing entity from receiving penalty immunity? No 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? No No No No
State of Mind; Scienter:
Does Immunity Apply When Violation was:
Civil Violations
(A) Negligently committed? Presumably yes Presumably yes Presumably yes Yes
(B) Recklessly committed? (1) Presumably yes Presumably yes Presumably yes No (20)
(C) Reckless with a total disregard for human health or safety? (1) Presumably yes Presumably yes Presumably yes No (20)
(D) Intentionally or knowingly committed? Presumably yes Presumably yes Presumably yes No (21)
Does Immunity Apply When Violation was:
Criminal Violations
(A) Criminally negligent? Yes Presumably yes ( #1 ) No No (no criminal immunity)
(B) Criminally reckless? (2) No Presumably yes ( #1 ) No No (no criminal immunity)
(C) Intentionally or knowingly committed? No No No No (no criminal immunity)
Serious / Imminent and Substantial Endangerment
Does immunity apply when a violation is serious? No No No No
Is "serious" defined? No No No "Injury to one or more persons at site or off-site substantial actual harm to persons, property or the environment"
If "serious" not defined, within what context is term used? "Result in serious harm to human health or the environment" "Serious harm to human health or environment" "Serious harm to human health or the environment" N/A
Does immunity apply if violation caused imminent and substantial endangerment? No ( #4 ) State can bring an enforcement action to enjoin an imminent threat to public health or the environment.
( #2 )		 No No
Is imminent and substantial endangerment defined? No No ( #2 ) No No
Imminent and substantial endangerment to what? Human health or environment Imminent and substantial endangerment to human health or the environment Human health or the environment Imminent or substantial risk of serious injury to persons at site, or risk of harm to persons, property or environment
Pattern of Environmental Violations
Does immunity apply when violations constitute a pattern? No Presumably yes No No. Immunity does not apply if the person claiming the immunity is found by a court or administrative law judge to have repeatedly or continuously committed significant violations and not attempted to bring facility into compliance, so as to constitute a pattern.
What constitutes a pattern? Continuous or repeated violations due to separate and distinct events N/A Continuous or repeat violations that are significant and due to separate and distinct events Series of violations due to separate and distinct events
Within what time frame is a pattern established? Within 3 years prior to date of disclosure N/A 3-year period immediately prior to disclosure Within a 3-year period
Does "pattern" require the violation at issue or one substantially similar to have been repeated? No, unless pattern is demonstrated by multiple settlement agreements, and violations are serious. N/A No No
Must the violations have occurred at the same facility? Yes N/A Yes, property or facility at issue Yes
Does pattern of violations include multiple settlement agreements related to the same alleged violation? Yes, if agreements concern serious violations within the 3-year period. N/A Yes No
Does pattern of violations include multiple violations of settlement agreements? Yes N/A Yes, if related to substantially the same violations No
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 No (15) No, but violator must cooperate with director in investigation of issues disclosed No, but violator must cooperate with agency in investigation of issues disclosed
Does penalty mitigation apply, if the consent order or decree required after voluntary disclosure is violated? N/A No No (must cooperate for disclosure to be voluntary) No (must cooperate to make disclosure voluntary)
Does immunity apply if a consent order or decree has been violated prior to voluntary disclosure? No, if violation is serious or is part of a pattern of serious violations. Yes, subject to conditions (15) Presumably yes Presumably yes
Can consent order or decree still be mandated by a governmental agency even with a voluntary disclosure? Not specified Yes Not specified Not specified
Does immunity apply if violation found pursuant to complying with terms of consent order or decree? (3) Presumably yes Presumably yes Yes, unless disclosures required by decree. Yes, unless disclosure is required solely by specific condition of decree.
Mitigation of Penalties
Are imposed penalties not subject to immunity, nevertheless subject to mitigation? Yes, if good faith effort made to disclose and resolve violation, civil penalties are subject to mitigation. Yes, state must take into account the good faith efforts of the regulated entity to cooperate in deciding what action to pursue or penalty to impose. Not specified Yes, factors to be considered in mitigation are 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 No Not specified
Statute/law void after certain date? (Sunset provision?) No No No (18) No

Notes

  1. Recklessness involves a greater degree of fault than negligence, but a lesser degree of fault than intentional wrongdoing. Recklessness is equivalent to gross negligence.
  2. Gross negligence so extreme that it is punishable as a crime.
  3. 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
  4. (Michigan) Section 324.14802.(2) of the state's environmental audit privilege and immunity law contains a relatively long list of exceptions to the law's privilege and protection from disclosure provision, including but not limited to: 1) machinery and equipment maintenance records and 2) information obtained by observation, sampling, or monitoring by any regulatory agency, and Information legally obtained from a source independent of the environmental audit. See Michigan Compiled Laws §§ 342.14802.(3); 342.14803.
  5. (Michigan) If related to a violation of Art. II or Art. III, Chapter 1 or 3 of MI Public Act No. 451 of MI Public Acts of 1994.
  6. (Michigan) See supra the laws listed accompanying note 2.
  7. (Minnesota) To obtain immunity, a facility must qualify for participation in the environmental improvement program. To participate, more than 2 years must have elapsed since the initiation of an enforcement action that resulted in the imposition of a penalty involving the facility. See Minn. Stat. § 114C.22, Subd. 1.
  8. (Minnesota) The state must defer, for at least 90 days, any enforcement action against the owner/operator of a facility after a report that meets the requirements of Minn. Stat. § 114C.22 is submitted to the commissioner.
  9. (Minnesota) After receipt by the commissioner of an audit report that qualifies for participation in the state's environmental audit pilot program, the report is privileged as to all other persons other than the state and the federal government. See Minnesota Statutes §§ 114C26 (2) and (4).
  10. (Minnesota) A criminal enforcement action may be brought by the state at any time against any person who commits a violation under Minn. Stat. § 609.671 (Environment, Criminal Penalties). The state, however, must take into account the good faith effort of the entity to comply with environmental requirements in deciding whether to pursue an enforcement action and the penalty, if any, that should be imposed. Minn. Stat. §114C.24, Subd. 4.
  11. (Minnesota) The state must take into account the good faith effort of the entity to comply with environmental requirements in deciding whether to pursue an enforcement action and the penalty, if any, that should be imposed. Minn. Stat. § 114C.24, Subd. 4
  12. (Minnesota) There is a 90-day period of deferred enforcement, see supra text accompanying note 5.
  13. (Minnesota) If an exception to immunity as outlined in Minn. Stat. § 114C.23, Subd. 3 exists, the state must take into account the good faith effort of the entity to comply with environmental requirements in deciding whether to pursue an enforcement action and what, if any, penalty should be imposed. Under Sec. 114C.23, Subd. 4(1), in determining whether the entity has acted in good faith, one of the items the state must consider is the timeliness of the corrective action taken by the entity when the non-compliance was discovered.
  14. (Minnesota) Owner/operator does not have to enter into a consent decree, but must sign a commitment to correct violations as expeditiously as possible under the circumstances. Also, if remedial action is not possible within 90 days, a performance schedule must be submitted to and approved by the commissioner.
  15. (Minnesota) If it has been less than one year since the final resolution of violation, administrative penalty order, or a civil criminal lawsuit that resulted in an enforcement action against the owner/operator of a facility for a similar violation as the one disclosed, then a civil or administrative enforcement action can be brought, which can involve a penalty under Minn. Stat. § 115.071 (civil) or 116.072 (administrative).
  16. (Ohio) The privileged information relating to environmental audits in Ohio is rather broad. Under § 3745.71(A), the contents of the environmental audit report and the contents of communications between the owner or operator and employees or contractors, or among employees or contractors that are necessary to the audit are privileged. The exceptions to this rule are enumerated at Ohio Revised Code § 3745.71(C)(1-13).
  17. (Ohio) Environmental laws means §§ 1511.02 and 1531.29, Chapters 3704, 3745, 3746, 3750, 3751, 3752, 6109, and 6111 of the Ohio Revised Code; any other sections or chapters of the Ohio Revised Code with environmental protection as its principle purpose; any federal or local counterparts or extensions of those sections or chapters; and, adopted rules, terms or conditions of orders, permits, licenses, license renewals, variances, exemptions, or plan approvals issued under the above specified sections, chapters, counterparts or extensions.
  18. (Ohio) The state's audit privilege and immunity law was slated to sunset on January 1, 2004. On December 9, 2003, however, the governor of Ohio extended the law until January 1, 2009.
  19. (Texas) Exceptions to the statute's privilege provision are found at §§ 4447cc (6) and (7).
  20. (Texas) Immunity also does not apply when: the violation was committed recklessly by a member of the person's (who disclosed the violation) staff or an agent of the person; the person's policies or lack of a prevention system contributed materially to the violation; and, the violation resulted in substantial injury to one or more persons at the site or off-site harm to persons, property or the environment. Immunity does not apply if the violator is criminally responsible within the meaning of Sec. 7.02 of the Texas Penal Code.
  21. (Texas) Immunity does not apply when the violation was committed knowingly by a member of the person's management or an agent of the person or when the person's policies or lack of a prevention system contributed materially to the occurrence of the violation. Immunity does not apply if the violator is criminally responsible within the meaning of Sec. 7.02 of the Texas Penal Code.

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