State Audit Privilege and Immunity Laws & Self-Disclosure Laws and Policies
- State Audit Privilege and Immunity Laws
- Voluntary Self-Disclosure Penalties
- State Self-Disclosure Policies
- State Attorney General Opinions and Memoranda of Understanding Concerning State Audit Privilege and/or Immunity Laws
The following states have enacted environmental audit privilege and/or penalty immunity laws.
The first date in parentheses 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. EPA may not have a formal view with respect to the statutory provisions enacted since 2012.
- Arizona (04/12)
- Arkansas (02/95, 03/99, 07/09)
- Illinois (01/95, repealed 08/05)
- Indiana (07/94, 05/99, 7/14)
- Oregon (07/93, 06/97, 07/97, 06/01)
- Minnesota (01/95, 05/99, 03/00, 05/01) (see Note 1: Minnesota)
- New Jersey (12/95)
- Rhode Island (07/97, 07/01)
- (see Note 2: Wisconsin)
Privilege & Immunity
- Alaska (05/97)
- Arizona (04/00, never became effective) (see Note 3: Arizona)
- Colorado (06/94, 05/00)
- Idaho (07/95, sunset 12/97)
- Iowa (04/98, 02/01, 05/11)
- Kansas (04/95, 07/06)
- Kentucky (07/94, 06/01)
- Michigan (03/96, 11/97)
- Mississippi (04/95, 01/03)
- Montana (05/97, sunset 10/01)
- Nebraska (06/98)
- Nevada (07/97, 6/15)
- New Hampshire (07/96, 04/99, sunset 07/03)
- North Dakota (08/17)
- Ohio (12/96, 03/97, 09/98, 12/03, 03/04 "technical amendments only,” 09/13, 06/14 “technical amendments only,” 06/15 “technical amendments only”)
- South Carolina (06/96, 05/00)
- South Dakota (03/96)
- Texas (05/95, 05/97, 09/13, 09/17 ) (see Note 5: Texas)
- Utah (03/95, 04/96, 05/97, 03/02, 03/08, 05/08 "technical amendments only")
- Virginia (03/95)
- Wyoming (02/95, 03/98, 03/06 "technical amendments only")
**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.
* Wisconsin's innovative "Green Tier" program , 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.
Wisconsin enacted a minor revision to the Green Tier program in March 2013 and again in June 2018.
***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.
In 2015, North Carolina enacted an Environmental Self Audit Privilege and Limited Immunity provision that by its terms (as of late July 2017) had not yet become effective.
In September of 2017, § 4447cc of Title 71 of Texas’ Civil Statutes was recodified to Title 13 of the Texas Health and Safety Code. § .053 adds a substantive component regarding continuation of audits begun before acquisition of closing dates; § .153 incorporated 4447cc10(f), dividing it into subsections; §§ .154 and .155 incorporated 10(g), dividing it into subsections; § .157 expands upon the exceptions to immunity and offers mitigating factors; §§ 4447cc11 to 13 were removed. All other sections remained substantively the same in the new statute.
Maine enacted its environmental audit mitigation statute in June of 2011. § 349-O of Title 38 provides that the Department of Environmental Protection may not impose full or partial gravity-based penalties that are disclosed.
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. In January of 2017 Illinois revised the law to add an exemption for small businesses.
One state, Oklahoma, adopted a rule in June of 1997 (amended 06/03) that allows penalty immunity under certain conditions.
The following states have adopted policies that address self-disclosures of environmental violations. The first date in parentheses indicates when the policy was adopted; subsequent dates reflect policy revisions.
- Arizona (03/97, small business only, 05/98, small business only, 01/02)
- Arkansas (2008)
- California (07/96, 12/98, 10/03)
- Connecticut (10/96, 03/00, 04/05/02, 07/04)
- Delaware (04/94, 04/97, 06/00, 06/02, 12/02, 03/03, 09/03)
- Florida (04/96)
- Hawaii (01/98)
- Indiana (04/5/99, 11/06, 02/10, 07/18: removed by statute a requirement for the Department of Environmental Management to provide annual reports on the use and effectiveness of its enforcement policy)
- Maine (01/96, 02/96) (only applicable to small business)
- Maryland (06/97)
- Massachusetts (04/97, 01/05 (addendum for state agencies), 05/07, 07/13)
- New Mexico (02/99, 07/01, 2005)
- New York (08/99, only applicable to small business, 10/13, repealed former “Small Business Self-Disclosure Policy” and applies to all regulated entities)
- North Carolina (09/95, 07/00)
- Oklahoma (07/13)
- Oregon (02/99, 01/02, 06/05, 03/06)
- Pennsylvania (09/96)
- Tennessee (11/96)
- Vermont (12/96, sunset on 12/98, re-adopted 2001-2003, then again in 04/03)
- Washington (12/94)
- Wyoming (04/97) (only applicable to small business)
Former self-disclosure policies for environmental violations in Florida and Washington are no longer effective. Minnesota, which also formerly had a self-disclosure policy, switched to a statutorily established program. See Note 1: Minnesota above.
State Attorney General Opinions and Memoranda of Understanding 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.
- Alaska (03/14/00)
- Arizona (01/28/19, 04/02/19) (the opinions interpret Arizona’s April 2014 audit privilege law)
- Colorado (04/14/00, MOA 04/18/00, MOA 05/30/00)
- Indiana (12/01/98)
- Iowa (02/01/01)
- Michigan (05/19/97, MOA 07/01/97)
- Minnesota (11/12/98, MOA 11/25/98)
- Montana (11/25/98, MOA 12/13/99)
- Nebraska (02/26/01, letter from state DEQ 03/21/01)
- Nevada (05/30/01)
- New Hampshire (1/13/00, 01/21/00)
- North Dakota (2/5/19)
- Ohio (03/23/98, MOA 03/24/98)
- Rhode Island (07/25/01, 04/03/02)
- South Dakota (03/20/98)
- Virginia (01/12/98)
- Wyoming (12/04/97)