Table VII: State Environmental Audit Immunity Laws - U.S. EPA Region IX-X
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 VII ENVIRONMENTAL AUDIT IMMUNITY LAWS- REGIONS IX-X|
|EPA REGION||R IX||R IX||R X||R X|
A: GENERAL STATUTORY PROVISIONS
|Immunity Statute||Ariz. Rev. Stat. §§ 49-191, and 49-191.01 to 49-191.07 (2001) (never became effective) ()4)||Nev. Rev. Stat. §§ 445C.020 -120 (2002)||Alaska Stat. §§ 09.25.450-490 (Michie 2002)||Idaho Code §§ 9-801 to -811 (sunset Dec. 31, 1997)|
|Effective Date||None [This law is included only for comparison purposes] (4)||July 5, 1997||August 11, 1997||July 1, 1995, sunset Dec. 31, 1997|
|Does immunity depend on voluntary disclosure?||Yes. In addition, the organization must enter into the state's voluntary environmental performance program.||Yes||Yes||Yes|
|Voluntary disclosure to whom?||The Director of Arizona's Department of Environmental Quality (DEQ)||An appropriate regulatory agency (5)||The commissioner's office of Alaska's Department of Environmental Conservation (DEC) and, when the audit includes an assessment of compliance with a municipality's ordinances, to the municipal clerk||"The appropriate environmental agency"|
|Voluntary disclosure within what time period?||If the violation causes an imminent and substantial hazard, within 24 hours; otherwise within 72 hours or a time not to exceed 10 days (per agreement).||To be specified in a written agreement between the regulated person and the regulatory agency||Promptly after knowledge of the information disclosed is obtained by owner/operator||"In a timely manner"|
|Form the voluntary disclosure must take?||Not specified||To be specified in a written agreement between the regulated person and the regulatory agency||In writing by certified mail to the DEC or municipality with enforcement jurisdiction||Environmental audit report|
|Who has burden for proving or disproving that disclosure was voluntary?||Not specified, but for decisions made by the Director of DEQ, the affected party may file for judicial review.||For administrative and civil penalties only, the regulated person has the burden of establishing that the disclosure meets the requirements enumerated in the statute. The regulatory agency has burden of rebutting presumption against liability.||A person claiming the privilege described in this section has the burden of establishing the applicability of the privilege. The DEC or municipality has the burden of disproving that the disclosure was voluntary.||Rebuttable presumption that disclosure is voluntary with prima facie showing|
|Standard of proof for rebuttal of presumption that disclosure was voluntary?||In judicial review, a person must show director's decision was arbitrary, capricious or an abuse of discretion.||Preponderance of the evidence||Not specified||Not specified|
|Elements of prima facie case for "voluntary" specified?||Yes||Yes||Yes||Yes|
Environmental Audit Requirements
|Must the knowledge of the violation have come from an environmental audit/assessment?||Yes, through an annual evaluation||Yes||Yes||Yes|
|Must audit be completed within a specified time?||No, but an annual evaluation required||Yes, to be specified in a written agreement between the regulated person and the regulatory agency||Within a reasonable time, but no longer than 90 days unless agreed upon by owner/operator and the DEC||No|
|Good faith standard for environmental audit performance?||Due diligence. Also, if the organization fails to perform under the terms of their agreement with the director of DEQ, the organization's participation in the environmental performance program be terminated.||Yes, the presumption against liability for civil or administrative penalties is rebutted if audit was conducted for a fraudulent purpose.||No (8)||No|
|Good faith standard for environmental audit disclosure?||Not specified, but if the organization makes any material misrepresentations or material omissions to the Director of DEQ, participation in the environmental performance program shall be terminated.||Yes, the presumption against liability for civil or administrative penalties is rebutted if audit was conducted for a fraudulent purpose.||No||No|
|Does immunity apply if audit report fraud or misrepresentation occurs?||No, but if the organization makes any material misrepresentations or material omissions to the Director of DEQ, participation in the environmental performance program shall be terminated.||No, immunity (from civil and administrative penalties) and mitigation (of criminal penalties) depends on voluntary disclosure in accordance with the written agreement.||Not specified, but presumably no. The owner/operator must cooperate with the appropriate agency in investigation of disclosed issues.||Not specified, but presumably no (violators must make immediate efforts to achieve compliance for disclosed violations).|
|Uninterrupted or continuous auditing specifically prohibited?||No, an annual evaluation is required.||Not specified, but presumably yes (written agreement required)||No, but for immunity to apply, audit/audit report must be completed in a reasonable/timely manner.||No|
|Does immunity depend on notification that an environmental audit was to take place?||No.||Yes||Yes, notice must be given at least 15 days before audit is conducted. The form and content of notice is specified in the act.||No|
Environmental Audit Availability
|Can an environmental audit report be obtained by regulatory agency without voluntary disclosure?||Not specified, but the act does not prevent the state from using information obtained through a compulsory process in any proceeding to prove noncompliance.||The audit report is privileged, unless a regulatory agency requests the results of the audit at a proceeding or action commenced by the agency.||Not specified. The owner or operator of the facility, however, can not be required to waive the audit report privilege as a condition of a permit, license or approval issued under an environmental law.||Subject to exceptions outlined in the statute, a compelled disclosure of an environmental audit is prohibited. (13)|
|Are submitted environmental audit reports available to public inspection?||All penalty waiver requests and waiver decisions, and all disclosures required through participation in the program are public records available to the public, unless the information is protected from disclosureas provided in the act.||Subject to exceptions outlined in the statute, an environmental audit conducted pursuant to the provisions of the statute shall be deemed privileged. (6)||Subject to exceptions outlined in the statute, an environmental audit is privileged. (9) The privilege does not apply to criminal proceedings.||Subject to exceptions outlined in the statute, an environmental audit report is privileged. (14)|
B: IMMUNITY: GENERAL APPLICABILITY
|To whom does immunity apply?||An "organization," which includes a company, corporation, political subdivision, firm, enterprise, public or private||Regulated person, defined as the owner or operator of a regulated facility||The owner or operator of a facility (as defined in the statute)||"Person," the definition of which is extensive, includes government agency and "any other legal entity." (15)|
|Is Immunity Provided from:||
Extent of Immunity from Prosecution Provided
|(A) Administrative penalties?||No||Yes||Yes (10)||Yes|
|(B) Civil penalties?||Yes||Yes||Yes||Yes|
|(C) Criminal penalties?||No||No, mitigation only||No||Yes|
|(D) Injunctive relief?||No||No (#1)||No||No|
|(E) Other actions?||No||No||No, immunity specifically does not apply to technical or remedial provisions ordered by a government agency.||No|
Is Immunity from Prosecution Provided for a Violation of:
|(A) Administrative orders?||No||No||No||No|
|(B) Administrative consent decrees?||No||No||Not specified, but presumably no ( #4 )||No|
|(C) Civil Judicial orders?||No||No||No||No|
|(D) Civil Judicial consent decrees?||No||No||
Not specified, but presumably no(#4 )
|(E) Permit provisions?||Presumably yes, if a requirement of an environmental statute or rule||Yes, if issued under specified sections of the Nevada revised statutes (7)||Yes, if issued under environmental laws
( #2 and #3 )
|From violations of which laws, statutes, rules, or regulations is immunity from prosecution provided?||Environmental statutes and rules||Environmental requirements, defined as: specified sections of the Nevada revised statutes or any regulations adopted pursuant to those statutes (7) ( #2 )||
Environmental laws, defined as: federal or state environmental laws implemented by the DEC, or rules, regulations or municipal ordinances adopted in conjunction with those laws (11)
|Any state environmental law|
|Any enumerated exclusions to provided immunity?||All incentives provided by the state shall be withdrawn effective on termination or withdrawl of the organization's participation in the program.||The authority of a regulatory agency to order compliance with the voluntarily disclosed violation is not limited by the immunity or mitigation.||The statute can not be construed to prevent the DEC from issuing an emergency order in a situation involving imminent or substantial endangerment to public health, welfare or environment.||No|
|May penalties be assessed before a final determination that disclosure was voluntary?||Not specified||Presumably no||Presumably no (during auditing period the DEC may not initiate any investigative activity at the facility).||Not specified|
|Must the owner/operator take remedial action for immunity to apply?||Yes. If the noncompliance occurs again as a result of a failure to implement approved remediation procedures, the organization's participation in program shall be ended.||Yes||Yes||Yes|
|Must nature of remedial action be specified to regulatory agency?||Yes, the noncompliance must be corrected to the satisfaction of the Director of DEQ.||Yes, the regulated person must enter into an enforceable agreement with the appropriate agency.||No, but the department may request, under a claim of confidentiality, the part of the audit report that describes the implementation plan to correct past noncompliance.||No|
|Time frame for remedial action to occur?||"In a timely manner"||Not specified, but the regulated person must comply with the environmental requirement as soon as practicable.||Efforts to achieve compliance and remediation must be initiated promptly, with correction within 90 days. If a longer time is needed, owner/operator must enter into compliance agreement with the DEC.||"Immediately initiates" and achieves compliance within a "reasonable time" after completion of the audit|
|Good faith or Due diligence standard for remedial action?||Not specified, but participation in the program may be terminated, if the organization fails to perform terms of agreement with the Director of DEQ. Standards for sufficient compliance shall be described in the agreement with the director. Organization must cooperate in investigation of noncompliance.||Not specified||Yes, compliance and remediation must be pursued with due diligence.||Yes, must pursue compliance with due diligence.|
|Proof that corrective action was taken required as a follow up?||Not specified, but the regulated person must enter into enforceable agreement with the appropriate regulatory agency in regards to remedial action.||No||No|
|Is the regulated entity required to undertake steps to prevent the recurrence of the violation?||Yes, the organization must agree in writing to implement procedures approved by the Director of DEQ.||Yes, the regulated person must enter into enforceable agreement with appropriate regulatory agency.||Yes||No|
C: EXCEPTIONS TO IMMUNITY
|Does Immunity Apply When:||
Disclosed Violations: General Issues
|(A) Injunctive relief has been granted to remedy the violation?||Presumably no. No penalty waiver, if the organization does not disclose noncompliance before the filing of a judicial complaint related to the noncompliance.||Not specified, but presumably no. An injunction may be evidence of either: a lack of cooperation or a violation causing imminent or substantial endangerment.||Not specified, but presumably no. An injunction may be evidence of: a lack of cooperation; a violation causing imminent or substantial endangerment; or, a lack of prompt reporting.||Not specified, but presumably yes.|
|(B) Violation results in an economic benefit or competitive advantage for the violator?||The Director of DEQ may refuse to grant a penalty waiver, if noncompliance results in a significant cost savings for the organization.||The presumption of immunity is rebutted to the extent a significant economic benefit resulted from a violation. That a regulated person obtained an actual economic benefit is a factor in determining any mitigation of a criminal penalty.||No, but only to the extent of economic benefit, if after taking into account reasonable mediation measures, substantial economic savings were realized.||Yes|
|(C) Violations are required to be reported?||Not specified, but presumably no||Not specified, but presumably yes, if pursuant to written agreement with appropriate regulatory agency||No ( #3 )||No|
|(D) Violation is either under investigation / discovered by an enforcement agency before it is reported?||No||The presumption against administrative or civil liability is rebutted to the extent the violation was disclosed after the commencement of an independent inspection / investigation, or the commencement of an administrative proceeding or civil or criminal action. In determining whether criminal penalty mitigation is appropriate, the agency must consider: (1) whether any inspection / investigation has commenced and (2) whether administrative, civil or criminal, proceedings have commenced before disclosure. ( #3 )||No||Not specified|
|(E) Violation is reported after an inspection or information request by federal, state, or local agency?||No, immunity does not apply, if noncompliance is reported by a whistle-blower employee before the organization reports.||Not specified, but presumably yes, unless violation detected by the DEC during the inspection||Not specified, but presumably yes|
|Is there a specific exception to penalty immunity when a disclosing entity has previously committed an environmental violation?||No. If, however, the organization or any of its senior managerial agents acting for or on behalf of the organization are convicted of any felony in state or federal court related to the administration or compliance with environmental laws, regulations or permits, the organization will be terminated from the program and will not be eligible for immunity.||A regulated person is presumed eligible for administrative or civil penalty immunity if the person or facility has not previously been issued a citiation for a violation of an environmental regulation, or the person has not conducted a previous environmental audit and failed to report a discovered violation.||No||No|
|Must the previous environmental violation have resulted in an imposed penalty?||For criminal penalty mitigation, a court shall consider whether the regulated person or facility has been issued a citation for a violation of an environmental requirement.||N/A||N/A|
|Does previous penalty immunity for an environmental violation affect current availability?||N/A||No||No||No|
|Must the previous environmental violation have concerned a same or similar violation as the one voluntarily disclosed?||N/A||Yes, the same violation||N/A||N/A|
|Must the previous environmental violation have concerned the same facility as the violation voluntarily disclosed?||N/A||Not specified, but presumably no||N/A||N/A|
|Time frame for previous environmental violation to affect penalty immunity?||N/A||3 years||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||Yes. A regulated person could have previously discovered and not reported a similar criminal violation and still be eligible for penalty mitigation, while not reporting a previously discovered similar administrative or criminal violation would preclude penalty immunity.||Yes. An exception to penalty immunity exists for a pattern of previous violations similar to the one being disclosed, 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||Yes||Yes||Presumably yes|
|(B) Recklessly committed? (1)||Presumably yes||No||No (12)||Presumably yes|
|(C) Reckless with a total disregard for human health or safety? (1)||Presumably yes||No||No (12)||Presumably yes|
|(D) Intentionally or knowingly committed?||Presumably yes||No||No (12)||Presumably yes|
|Does Immunity Apply When Violation was:||
|(A) Criminally negligent?||No (no criminal immunity)||No (no criminal immunity, only mitigation)||No (no criminal immunity)||Presumably yes|
|(B) Criminally reckless? (2)||No (no criminal immunity)||No (no criminal immunity, only mitigation)||No (no criminal immunity)||Presumably yes|
|(C) Intentionally or knowingly committed?||No (no criminal immunity)||No (no criminal immunity, only mitigation)||No (no criminal immunity)||Presumably yes|
Serious / Imminent and Substantial Endangerment
|Does immunity apply when a violation is serious?||No||The presumption against civil or administrative liability is rebutted to the extent it is established violation is serious.||Presumably yes||Yes, unless part of a pattern of serious violations|
|Is "serious" defined?||No||No||No||No|
|If "serious" not defined, within what context is term used?||When noncompliance results in serious actual harm to human health or environmental||"Violation resulted in serious actual harm"||N/A||No immunity if serious violations that constitute a pattern|
|Does immunity apply if violation caused imminent and substantial endangerment?||No||The presumption against civil or administrative liability is rebutted to the extent it is established the violation presented an imminent or substantial endangerment.(#1 )||No ( #1 )||Remedial action can be required through consent order or court action to abate an imminent hazard.|
|Is imminent and substantial endangerment defined?||No||No||No||No|
|Imminent and substantial endangerment to what?||Human health or the environment||Public health or the environment||One or more persons at the audited site, or to persons or property or the environment off-site||Not specified|
Pattern of Environmental Violations
|Does immunity apply when violations constitute a pattern?||No||Presumably yes||No||No, if pattern of serious violations|
|What constitutes a pattern?||The organization has repeatedly failed to comply with environmental laws, rules, permits or consent decrees.||N/A||(1) Violations that are the same or closely related to the violation for which immunity is sought; or (2) Not attempting to bring the facility into compliance so as to constitute a "pattern of disregard" of environmental laws.||Continuous or repeated violations due to separate or distinct events|
|Within what time frame is a pattern established?||Not specified||N/A||Within 36 months preceding the disclosed violation||Within the 3-year period prior to date of disclosure|
|Does "pattern" require the violation at issue or one substantially similar to have been repeated?||No||N/A||Under pattern definition (1) - yes.||No, unless pattern demonstrated by multiple settlement agreements, and violations are serious|
|Under pattern definition (2) - no.|
|Must the violations have occurred at the same facility?||Not specified||N/A||Under pattern definition (1) - the same facility or associated facilities in the state.||No|
|Under pattern definition (2) - the same facility.|
|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?||Presumably yes||N/A||Presumably yes (the multiple violations demonstrate a pattern of disregard).||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?||Yes, penalty waivers shall be in writing in the form of a mutual agreement, an administrative consent order or a judicial consent judgement. The organization must implement remediation procedures approved by the director.||Yes. The regulated person must enter into an enforceable agreement with regulatory agency to comply with the environmental requirement, remedy any damage, and take action to prevent recurrence.||No, but violator must co-operate with the DEC in investigation of issues disclosed.||Violator may, but is not required to, enter into voluntary consent decree; If imminent hazard, decree can be required.|
|Does penalty mitigation apply, if the consent order or decree required after voluntary disclosure is violated?||No (must cooperate to qualify for immunity)||No, for civil and administrative penalties. A violation is considered in any mitigation of a criminal penalty.||No (must cooperate to qualify for immunity)||Presumably no|
|Does immunity apply if a consent order or decree has been violated prior to voluntary disclosure?||No, if the noncompliance violates the terms of a consent agreement||No, if the regulated person of facility was specifically required, pursuant to a judicial or administrative order or consent agreement to comply with the disclosed environmental requirement that was violated.||No, if violation is part of a pattern||No, if violation of consent decree is part of a pattern of serious violations|
|Can consent order or decree still be mandated by a governmental agency even with a voluntary disclosure?||Presumably yes||Not specified||Yes, if disclosed violation can not be corrected within 90 days, the owner/operator must enter into a compliance agreement with the DEC or municipality.||Yes, for remedial action, except as provided for in statute|
|Does immunity apply if violation found pursuant to complying with terms of consent order or decree? (3)||Presumably yes, unless non-compliance discovered violates the terms of the consent agreement.||Presumably yes, if pursuant to agreement with appropriate regulatory agency||No||No, statute deemed the disclosure not voluntary.|
Mitigation of Penalties
|Are imposed penalties not subject to immunity, nevertheless subject to mitigation?||Not specified||Yes, if a federal statute or regulation provides for an imposition of a penalty, the voluntary disclosure is, to the extent permitted under the statute / regulation, a mitigating factor.||Yes, if immunity not granted because of the provisions of the act, the penalty can be mitigated, to the extent allowed by law, by taking specified conditions into account.||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?||Not specified||No ( #2 )||No||Not specified|
|Statute/law void after certain date? (Sunset provision?)||December 31, 2004 (4)||No||No||December 31, 1997|
- 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
- (Arizona) Arizona's immunity law was passed in 2000 and contained a sunset date of December 31, 2004. The necessary legislation to make the act effective, however, was never passed by the Arizona legislature. Consequently, the act never took effect.
- (Nevada) As defined in Nev. Rev. Stat. § 445C.060.
- (Nevada) Nev. Rev. Stat. § 445C.110.
- (Nevada) Requirements contained in Nev. Rev. Stat. §§ 444.440 to 444.645; 445A.300 to 445A.730; 445B.100 to 445B.640; 459.400 to 459.856; and 519A.010 to 519A.280, respectively.
- (Alaska) 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 that pertain to meeting environmental requirements.
- (Alaska) Alaska Stat. § 09.25.460.
- (Alaska) Immunity applies to: the disclosed violation; a violation based on the facts disclosed; and a violation, unknown to an owner/operator, that was discovered as a result of the disclosure of a separate violation.
- (Alaska) Also disclosures of circumstances, conditions or occurrences that constitute or may constitute a violation of environmental law.
- (Alaska) If committed or authorized by the owner/operator or a member of the owner/operator's management, and the owner/operator's policies contributed materially to the occurrence of the violation.
- (Idaho) See Idaho Code § 9-804.
- (Idaho) See Idaho Code §§ 9-804 to 9-808.
- (Idaho) See Idaho Code § 9-803 (6).