Text: H01379 Text: H01381 Text: H01300 - H01399 Text: H Index Bills and Amendments: General Index Bill History: General Index
PAG LIN
1 1 Amend House File 681 as follows:
1 2 #1. By striking page 1, line 1, through page 10,
1 3 line 31, and inserting the following:
1 4 "Section 1. NEW SECTION. 455H.1 TITLE.
1 5 This chapter shall be known and cited as the
1 6 "Environmental Audit and Voluntary Compliance Act".
1 7 Sec. ___. NEW SECTION. 455H.2 FINDINGS AND
1 8 DECLARATIONS.
1 9 The general assembly finds and declares that
1 10 protection of the environment is enhanced by voluntary
1 11 compliance with state environmental requirements and
1 12 that the public will benefit from incentives to
1 13 voluntarily identify and remedy environmental
1 14 noncompliance issues. It is further declared that
1 15 limited expansion of the protection against
1 16 prosecution will encourage regulated entities, large
1 17 and small, to voluntarily discover, correct, and
1 18 prevent instances of noncompliance with state
1 19 environmental requirements resulting in enhanced
1 20 protection of human health and the environment in the
1 21 state. The provisions of this chapter will not
1 22 inhibit the exercise of regulatory authority by those
1 23 persons entrusted with protecting the environment.
1 24 Therefore, an environmental audit and voluntary
1 25 compliance program is created and limited immunity is
1 26 provided to improve compliance with environmental
1 27 laws.
1 28 Sec. ___. NEW SECTION. 455H.3 DEFINITIONS.
1 29 As used in this chapter:
1 30 1. "Department" means the department of natural
1 31 resources created in chapter 455A.
1 32 2. "Director" means the director of the department
1 33 of natural resources or the director's designee.
1 34 3. "Environmental audit" means a voluntary,
1 35 systematic, objective, and documented internal
1 36 evaluation conducted by an owner or operator after the
1 37 effective date of this Act at one or more facilities,
1 38 or of processes, activities, or management systems
1 39 related to a facility, regulated under state
1 40 environmental requirements that are designed to
1 41 identify and correct noncompliance and prevent future
1 42 noncompliance. An environmental audit may be
1 43 conducted by the owner or operator of the facility, by
1 44 an employee of the owner or operator of the facility,
1 45 by an officer or director of the facility, by an
1 46 independent contractor hired by the owner or operator
1 47 of the facility, or by the attorney of the owner or
1 48 operator of the facility provided, however, that the
1 49 person performing the audit possesses a knowledge of
1 50 the facility and of state environmental requirements
2 1 reasonably necessary to conduct the audit. An
2 2 environmental audit within the meaning of this chapter
2 3 shall include the preparation of an environmental
2 4 audit report.
2 5 4. "Environmental audit report" means a formal
2 6 written report which is a single, discreet set of
2 7 documents clearly identified as the environmental
2 8 audit report and containing information generated and
2 9 collected in the course of conducting an environmental
2 10 audit. The report includes any information which is
2 11 collected and developed for the primary purpose of
2 12 conducting an environmental audit. The report
2 13 includes at a minimum all of the following components:
2 14 a. A report describing the scope of the
2 15 environmental audit including the starting and ending
2 16 dates.
2 17 b. The names and qualifications of the person
2 18 performing the environmental audit.
2 19 c. A summary of findings and conclusions resulting
2 20 from the environmental audit.
2 21 d. Identification of areas of noncompliance
2 22 identified during the environmental audit.
2 23 e. Proposed steps for correcting noncompliance.
2 24 f. If more than sixty calendar days will be
2 25 required to correct an area of noncompliance, a
2 26 compliance schedule identifying the time needed and
2 27 interim compliance measures to be taken to correct the
2 28 noncompliance and a statement of reasons supporting
2 29 the time periods needed.
2 30 g. Proposed steps and schedules designed to
2 31 prevent future noncompliance including consideration
2 32 of pollution prevention alternatives.
2 33 h. Appendices and exhibits appropriate to support
2 34 the findings, conclusions, and proposed steps and
2 35 schedules.
2 36 5. "Facility" means all buildings, equipment,
2 37 structures, and other stationary items that are
2 38 located on a single site or on contiguous or adjacent
2 39 sites and that are owned or operated by the same
2 40 person.
2 41 6. "Owner or operator" means the person or entity
2 42 who causes an environmental audit to be undertaken.
2 43 "Owner or operator" does not include a prospective
2 44 purchaser who caused the environmental audit to be
2 45 undertaken.
2 46 7. "Pollution prevention" means the elimination or
2 47 reduction of the use, generation, or release of
2 48 pollutants at their source.
2 49 8. "State" means the department of natural
2 50 resources, the attorney general, and all political
3 1 subdivisions of the state.
3 2 9. "State environmental requirement" means laws
3 3 administered by the department, rules adopted by the
3 4 department, permits or orders issued by the
3 5 department, an agreement entered into with the
3 6 department, or a court order issued pursuant to any of
3 7 the foregoing, or regulations under an ordinance or
3 8 other legally binding requirement of a political
3 9 subdivision of the state under authority granted by
3 10 state law relating to environmental protection.
3 11 Sec. ___. NEW SECTION. 455H.4 PROGRAM
3 12 ELIGIBILITY REQUIREMENTS.
3 13 In order to be eligible to participate in and enjoy
3 14 any of the benefits and privileges of this chapter, an
3 15 owner or operator must satisfy all of the following
3 16 conditions:
3 17 1. The owner's or operator's facility must not be
3 18 under a current enforcement action in the form of an
3 19 outstanding and unsatisfied administrative order,
3 20 referral to the attorney general, pending civil or
3 21 criminal court action, or outstanding and unsatisfied
3 22 court judgment.
3 23 2. At least twelve calendar months must have
3 24 elapsed since the final disposition of the last
3 25 enforcement action in the form of an administrative
3 26 order, referral to the attorney general, or civil or
3 27 criminal court action involving the facility.
3 28 3. At least twelve calendar months must have
3 29 elapsed since the submission of the last environmental
3 30 audit pursuant to this chapter for the facility.
3 31 4. The owner or operator must provide the director
3 32 with at least thirty calendar days' written notice of
3 33 intent to conduct an environmental audit meeting the
3 34 requirements of this chapter. This notification shall
3 35 include the projected starting and ending dates of the
3 36 audit. The notification shall also include a
3 37 certification of the owner or operator of the facility
3 38 that the applicable requirements of this section are
3 39 met.
3 40 5. The owner or operator must submit an
3 41 environmental audit report meeting the requirements of
3 42 section 455H.3, subsection 4, to the director within
3 43 sixty calendar days after the ending date of the
3 44 environmental audit. If the report identifies a
3 45 violation of an ordinance or other legally binding
3 46 requirement enacted by a political subdivision of the
3 47 state under authority granted by state law relating to
3 48 environmental protection, the owner or operator shall
3 49 also submit a copy of the environmental audit report
3 50 to the political subdivision within sixty calendar
4 1 days after the ending date of the environmental audit.
4 2 6. Submit to the director a written commitment
4 3 signed by the owner or operator of the facility to
4 4 correct areas of noncompliance identified in the
4 5 environmental audit report within sixty calendar days
4 6 or in accordance with the compliance schedule
4 7 contained in the environmental audit report.
4 8 7. The owner or operator must correct all areas of
4 9 noncompliance in accordance with the compliance
4 10 schedule as approved or extended by the director.
4 11 Sec. ___. NEW SECTION. 455H.5 REVIEW OF
4 12 COMPLIANCE SCHEDULES.
4 13 1. A compliance schedule submitted as part of an
4 14 environmental audit report in accordance with the
4 15 requirements of section 455H.3, subsection 4, shall be
4 16 subject to review and approval by the director. In
4 17 reviewing and approving a compliance schedule, the
4 18 director shall take into account information supplied
4 19 by the owner or operator as part of the environmental
4 20 audit report and information developed or obtained by
4 21 the department. In the event of a dispute over
4 22 approval of the compliance schedule, the owner or
4 23 operator may request a hearing pursuant to chapter
4 24 17A. A compliance schedule may be amended by written
4 25 agreement between the director and the owner or
4 26 operator.
4 27 2. The decision to approve a compliance schedule
4 28 shall be based on consideration of all of the
4 29 following factors:
4 30 a. The nature and extent of the noncompliance.
4 31 b. The severity of the impact or threat to the
4 32 environment, public health, or public safety resulting
4 33 from the noncompliance.
4 34 c. The economic benefits, if any, resulting from
4 35 the noncompliance and the current economic
4 36 circumstances of the facility.
4 37 d. The availability of equipment, material, and
4 38 technical expertise necessary to correct the
4 39 noncompliance.
4 40 e. The time needed to implement pollution
4 41 prevention opportunities as an alternative to
4 42 pollution control approaches to correct the
4 43 noncompliance.
4 44 Sec. ___. NEW SECTION. 455H.6 DEFERRAL OF
4 45 ENFORCEMENT.
4 46 1. The state shall defer for at least ninety
4 47 calendar days the enforcement of state environmental
4 48 requirements against the owner or operator of a
4 49 facility if an environmental audit report has been
4 50 submitted to the director and the owner or operator
5 1 meets the requirements of section 455H.4, subsections
5 2 1 through 6. If the report includes a compliance
5 3 schedule, and the compliance schedule is approved
5 4 under section 455H.5, the state shall defer
5 5 enforcement for the term of the approved compliance
5 6 schedule unless the owner or operator of the facility
5 7 fails to meet an interim compliance date contained in
5 8 the compliance schedule.
5 9 2. If within ninety calendar days after an
5 10 environmental audit report meeting the requirements of
5 11 section 455H.3, subsection 4, is received by the
5 12 director or within the time specified in an approved
5 13 compliance schedule, the owner or operator of a
5 14 facility corrects the areas of noncompliance
5 15 identified in the environmental audit report and
5 16 certifies to the director that the areas of
5 17 noncompliance have been corrected, the state shall not
5 18 impose any administrative or civil penalties against
5 19 the owner or operator of the facility for the reported
5 20 areas of noncompliance.
5 21 3. Notwithstanding subsections 1 and 2, the state
5 22 may at any time bring an enforcement action, which may
5 23 include a penalty, against the owner or operator of a
5 24 facility if any of the following instances occurs:
5 25 a. Less than one year has elapsed since final
5 26 resolution of an enforcement action against an owner
5 27 or operator in the form of an administrative order, or
5 28 a civil or criminal court action against the facility
5 29 for noncompliance with laws administered by the
5 30 department, rules adopted by the department, permits
5 31 or orders issued by the department, an agreement
5 32 entered into with the department, or a court order
5 33 issued pursuant to any of the foregoing and the owner
5 34 or operator was also shown as having been in
5 35 noncompliance in the report required under section
5 36 455H.3, subsection 4.
5 37 b. The facility has previously been found by the
5 38 state to have three or more instances of noncompliance
5 39 with state environmental requirements within the past
5 40 three years.
5 41 c. An instance of noncompliance causes serious
5 42 harm to public health, public safety, or the
5 43 environment.
5 44 d. An instance of noncompliance creates an
5 45 imminent threat to public health, public safety, or
5 46 the environment.
5 47 4. If the state finds one of the conditions in
5 48 subsection 3 exists, the state shall take into account
5 49 good faith efforts by the owner or operator to comply
5 50 with laws, rules, permits, or orders issued by the
6 1 department, an agreement entered into with the
6 2 department, or a court order issued pursuant to any of
6 3 the foregoing in deciding whether to pursue an
6 4 enforcement action, whether an enforcement action
6 5 should be administrative, civil, or criminal, and
6 6 what, if any, penalty should be imposed. In
6 7 determining whether the owner or operator has acted in
6 8 good faith, the state shall consider all of the
6 9 following:
6 10 a. Whether when noncompliance was discovered, the
6 11 owner or operator took corrective actions that were
6 12 timely and appropriate under the circumstances.
6 13 b. Whether the owner or operator exercised
6 14 reasonable care in attempting to prevent noncompliance
6 15 and ensure compliance with environmental requirements.
6 16 c. Whether the noncompliance resulted in
6 17 significant economic benefit to the regulated entity.
6 18 d. Whether prior to implementing the environmental
6 19 audit and voluntary compliance program, the owner or
6 20 operator had a history of good faith efforts to comply
6 21 with laws, rules, permits, or orders issued by the
6 22 department, an agreement entered into with the
6 23 department, or a court order issued pursuant to any of
6 24 the foregoing relating to environmental protection
6 25 requirements.
6 26 e. Whether the owner or operator demonstrated good
6 27 faith efforts to achieve compliance since implementing
6 28 an environmental audit and voluntary compliance
6 29 program.
6 30 f. Whether the owner or operator has demonstrated
6 31 efforts to implement pollution prevention
6 32 opportunities.
6 33 5. Nothing in this chapter precludes the state
6 34 from taking any enforcement action the state is
6 35 authorized to take with respect to noncompliance
6 36 discovered by the state prior to the time an owner or
6 37 operator has submitted an environmental audit report
6 38 meeting the requirements of section 455H.3, subsection
6 39 4, to the director, or not identified and addressed as
6 40 an area of noncompliance within the environmental
6 41 audit report submitted to the director.
6 42 Sec. ___. NEW SECTION. 455H.7 ACCESS TO
6 43 ENVIRONMENTAL AUDIT REPORTS.
6 44 After receipt by the director of a final
6 45 environmental audit report meeting the requirements of
6 46 section 455H.3, subsection 4, the final environmental
6 47 audit report shall be considered a public record
6 48 within the meaning and governed by provisions of
6 49 chapter 22. An owner or operator may request that
6 50 information submitted to the director as part of the
7 1 environmental audit report be treated as confidential
7 2 records as that term is defined in section 22.7. Any
7 3 information found to be a confidential record within
7 4 the meaning of section 22.7 shall not be considered a
7 5 public record. Participation by an owner or operator
7 6 in the environmental audit and voluntary compliance
7 7 program does not waive, minimize, reduce, expand, or
7 8 otherwise affect the level of protection or
7 9 confidentiality that exists under law with respect to
7 10 any other documents relating to an environmental
7 11 audit.
7 12 Sec. ___. NEW SECTION. 455H.8 ENVIRONMENTAL
7 13 AUDIT REPORTS INADMISSIBLE.
7 14 1. After receipt by the director of an
7 15 environmental audit report in compliance with sections
7 16 455H.3 and 455H.4, an environmental audit report is
7 17 not discoverable or admissible as evidence in any
7 18 civil, criminal, or administrative proceeding or in
7 19 response to a regulatory inspection, or inquiry,
7 20 except as otherwise provided in this chapter.
7 21 2. After receipt by the director of an
7 22 environmental audit report in compliance with sections
7 23 455H.3 and 455H.4, the owner or operator, or a person
7 24 who conducts an environmental audit for an owner or
7 25 operator, shall not be compelled to testify regarding
7 26 any information obtained solely through the
7 27 environmental audit and part of the environmental
7 28 audit report submitted to the director, without
7 29 consent of the owner or operator, unless ordered to do
7 30 so by a court of record or administrative tribunal.
7 31 This subsection does not apply if the environmental
7 32 audit is subject to an exception under section 455H.6.
7 33 3. The prohibitions in subsections 1 and 2 shall
7 34 apply only if both of the following conditions are
7 35 met:
7 36 a. The environmental audit report submitted to the
7 37 director meets all the requirements of section 455H.3,
7 38 subsection 4.
7 39 b. The owner or operator is in compliance with a
7 40 compliance schedule, if any, as approved or extended
7 41 by the director under section 455H.5.
7 42 4. The prohibition on admissibility shall not
7 43 extend to any of the following regardless of whether
7 44 or not they are included within an environmental audit
7 45 report:
7 46 a. Documents, communications, data, reports, or
7 47 other information required to be collected, developed,
7 48 maintained, reported, or otherwise made available to a
7 49 regulatory agency pursuant to local, state, or federal
7 50 environmental laws or regulations. However, the
8 1 prohibition shall extend to any observations,
8 2 findings, opinions, suggestions, or conclusions
8 3 derived from the above by the person conducting the
8 4 environmental audit.
8 5 b. Information obtained from observation,
8 6 sampling, or monitoring by any regulatory agency.
8 7 c. Information legally obtained from a source
8 8 independent of the environmental audit or from a
8 9 person who did not obtain the information from the
8 10 environmental audit or the environmental audit report.
8 11 d. Machinery and equipment maintenance records.
8 12 5. The prohibition on admissibility shall not
8 13 apply if a court or administrative tribunal determines
8 14 any of the following or determines that there is a
8 15 genuine issue of material fact which is germane to the
8 16 pending proceeding, as to any of the following:
8 17 a. The prohibition is asserted for a fraudulent
8 18 purpose.
8 19 b. The owner or operator was not eligible for
8 20 participation under section 455H.4, the environmental
8 21 audit report does not meet the requirements of section
8 22 455H.3, subsection 4, or the owner or operator has
8 23 failed to comply with the compliance schedule approved
8 24 under section 455H.5.
8 25 c. The environmental audit report or related
8 26 documents include material misrepresentations, or
8 27 there is evidence of perjury as to which the audit
8 28 report or testimony may be material.
8 29 d. The material is not subject to the prohibition.
8 30 e. The material, otherwise subject to the
8 31 prohibition, shows evidence of noncompliance with
8 32 local, state, or federal environmental laws and
8 33 appropriate efforts to achieve compliance with local,
8 34 state, or federal environmental laws were not
8 35 initiated and pursued with reasonable diligence upon
8 36 discovery of noncompliance.
8 37 f. The material, otherwise subject to the
8 38 prohibition, shows that violations of local, state, or
8 39 federal environmental laws were intentional or
8 40 repeated, or shows that violations of local, state, or
8 41 federal environmental laws resulted in substantial
8 42 harm to the public health or the environment. The
8 43 court or administrative tribunal may find admissible
8 44 only those portions of an environmental audit report
8 45 relevant to the issue in dispute.
8 46 g. The proceeding is an enforcement action
8 47 permitted under section 455H.6 or one to determine any
8 48 issue arising under this chapter.
8 49 h. The proceeding is one to determine whether the
8 50 owner or operator of the facility in question is
9 1 eligible for any immunities or liability protections
9 2 provided by any other law.
9 3 6. The owner or operator and the state may at any
9 4 time stipulate to entry of an order directing that
9 5 specific information contained in an environmental
9 6 audit report is or is not subject to the prohibition
9 7 under this section.
9 8 Sec. ___. NEW SECTION. 455H.9 NO EFFECT ON OTHER
9 9 RIGHTS OR PRIVILEGES.
9 10 Nothing in this chapter shall limit, waive, or
9 11 abrogate any of the following:
9 12 1. Rights of an owner or operator who chooses not
9 13 to participate, or is not eligible to participate, in
9 14 the environmental audit and voluntary compliance
9 15 program.
9 16 2. Rights of other persons relative to matters
9 17 addressed by the environmental audit and voluntary
9 18 compliance program.
9 19 3. The scope or nature of any statutory or common
9 20 law privilege, including the work product doctrine and
9 21 the attorney-client privilege.
9 22 Sec. ___. NEW SECTION. 455H.10 REPORTS REQUIRED
9 23 BY LAW.
9 24 Nothing in this chapter alters the obligation of
9 25 any person to report releases, violations, or other
9 26 matters that are required to be reported by state or
9 27 federal law, rule, permit, or administrative or
9 28 judicial order."
9 29 #2. By renumbering as necessary.
9 30
9 31
9 32
9 33 SHOULTZ of Black Hawk
9 34 HF 681.203 77
9 35 tm/jj/28
Text: H01379 Text: H01381 Text: H01300 - H01399 Text: H Index Bills and Amendments: General Index Bill History: General Index
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