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State Audit Privilege and Immunity Laws & Self-Disclosure Laws and Policies


State Audit Privilege and Immunity Laws

The following states have enacted environmental audit privilege and/or penalty immunity laws. The first date contained in the parenthetical indicates when the law was enacted; the subsequent dates reference the date of actions to satisfy minimum requirements for federally authorized, delegated or approved environmental programs (i.e., sunset, amendment, repeal). In many cases, the actions to satisfy those minimum requirements included an Attorney General Opinion or Memoranda of Agreement with a state. Those actions are listed below under "Attorney General Statements & Memoranda of Agreement."

In almost all instances, each State listed below has enacted statutory revisions and/or issued a clarifying Attorney General's statement and/or entered into a Memorandum of Agreement with EPA to satisfy minimum requirements for federally authorized, delegated, or approved environmental programs. Note: These laws need to be scrutinized carefully to discern differences that may impact decisions on compliance with minimum federal requirements. The EPA may not have a formal view with respect to the statutory provisions enacted since 2012.

Privilege Only

Immunity Only *

Privilege & Immunity

* Wisconsin's innovative "Green Tier" program Exit EPA Disclaimer, authorized by W.S.A. § 299.85 (re-adopted with amendments July 11, 2009 in the 2009 Senate Bill 126), provides incentives to entities that voluntarily improve their environmental performance. The program is based upon a collaborative system of contracts and charters between businesses and the Wisconsin Department of Natural Resources (DNR). The program is divided into two tiers. Generally speaking, tier one participants are entitled to deferred civil enforcement as well as statutorily capped or stipulated fines for violations. Through contract, DNR promises to not seek penalties for those businesses that self-disclose violations and take corrective action. Tier two participants generally contract for a limited form of immunity from any civil action for self-disclosed violations. Charter participants also typically contract for a limited form of immunity from civil action.

** Minnesota’s environmental audit law was enacted in 1995. Section 114C.26 of the audit law incorporated by reference the Minnesota Pollution Control Agency’s policy on environmental auditing. In 1999, section 114C.26 was amended and the reference to the state’s policy was omitted. In its place, the amendment requires that a self- disclosing entity follow procedures and criteria set forth in the amended statute. Although Minnesota policy on environmental auditing has never been formally abolished, because the statutory procedures and criteria must now be used, the policy, as a practical matter, has been superseded.

*** In April 2000, Arizona enacted a law that contained elements of audit privilege and/or immunity in the context of encouraging environmental management systems. The law satisfied minimum requirements for federally authorized, delegated, or approved environmental programs. The Arizona law never became effective because its effectiveness was conditioned on passage of an appropriations bill to fund a program to administer the law, which never happened.

 

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State Voluntary Self-Disclosure Civil Penalty Mitigation Law

One state, Illinois, enacted a statute in January of 2004 that permits mitigation of a civil penalty when a person or entity, under a number of specified conditions set forth in the statute, self-discloses its noncompliance.

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State Voluntary Self-Disclosure Penalty Immunity Rule

One state, Oklahoma, adopted a rule in June of 1997 (amended 06/03) that allows penalty immunity under certain conditions.

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State Self-Disclosure Policies

The following states have adopted self-disclosure policies. The first date in parentheses indicates when the policy was adopted; subsequent dates reflect policy revisions.

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Attorney General Statements & Memoranda of Agreement Concerning State Audit Privilege and/or Immunity Laws

The following states have been issued Attorney General States and/or Memoranda of Agreement. The dates indicate Attorney General statements unless otherwise indicated.

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