Text: H08053 Text: H08055 Text: H08000 - H08099 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 everything after the enacting 1 3 clause and inserting the following: 1 4 "Section 1. NEW SECTION. 455J.1 TITLE. 1 5 This chapter shall be known and cited as the 1 6 "Environmental Audit Privilege and Immunity Act". 1 7 Sec. 2. NEW SECTION. 455J.2 DEFINITIONS. 1 8 As used in this chapter, unless the context 1 9 otherwise requires: 1 10 1. "Department" means the department of natural 1 11 resources created under section 455A.2. 1 12 2. "Environmental audit" means a voluntary 1 13 evaluation of a facility or operation, of an activity 1 14 at a facility or operation, or of an environmental 1 15 management system at a facility or operation, which is 1 16 regulated under local, state, or federal environmental 1 17 laws, rules, ordinances, or permits, conducted by an 1 18 owner or operator, an employee of the owner or 1 19 operator, or an independent contractor that is 1 20 designed to identify historical or current 1 21 noncompliance, discover environmental contamination or 1 22 hazards, remedy noncompliance or improve compliance 1 23 with environmental laws, or improve an environmental 1 24 management system. Once initiated, an environmental 1 25 audit shall be completed within a reasonable time not 1 26 to exceed six months unless an extension is approved 1 27 by the governmental entity with regulatory authority 1 28 over the regulated facility or operation based on 1 29 reasonable grounds. 1 30 3. "Environmental audit report" means a document 1 31 or set of documents generated as a result of an 1 32 environmental audit. An "environmental audit report" 1 33 includes supporting information which may include, but 1 34 is not limited to, the report document itself, 1 35 observations, samples, analytical results, exhibits, 1 36 findings, opinions, suggestions, recommendations, 1 37 conclusions, drafts, memoranda, drawings, photographs, 1 38 computer-generated or electronically recorded 1 39 information, maps, charts, graphs, surveys, 1 40 implementation plans, interviews, discussions, 1 41 correspondence, and communications related to the 1 42 environmental audit, if the supporting information and 1 43 documents are generated and developed for the primary 1 44 purpose and in the course of or as a result of 1 45 conducting an environmental audit. An "environmental 1 46 audit report" may include any of the following 1 47 components: 1 48 a. A report prepared by the person conducting the 1 49 environmental audit, which may include the scope of 1 50 the environmental audit, the information gained in the 2 1 environmental audit, conclusions, recommendations, 2 2 exhibits, and appendices. 2 3 b. Memoranda and documents analyzing portions or 2 4 all of the report and discussing implementation 2 5 issues. 2 6 c. An implementation plan which addresses 2 7 correcting past noncompliance, improving current 2 8 compliance or an environmental management system, or 2 9 preventing future noncompliance. 2 10 d. Periodic updates documenting progress in 2 11 completing the implementation plan. 2 12 4. "Inquiring party" means any party appearing 2 13 before a court or a presiding officer in an 2 14 administrative proceeding seeking to review or obtain 2 15 an in camera review of an environmental audit report. 2 16 5. "Owner or operator" means the person or entity 2 17 who caused the environmental audit to be undertaken. 2 18 6. "Privilege" means the privilege provided to an 2 19 environmental audit report as provided in this 2 20 chapter. 2 21 Sec. 3. NEW SECTION. 455J.3 PRIVILEGE. 2 22 1. An environmental audit report is privileged and 2 23 confidential and is not discoverable or admissible as 2 24 evidence in any civil or administrative proceeding, 2 25 except as otherwise provided in this chapter. The 2 26 environmental audit report shall be labeled 2 27 "ENVIRONMENTAL AUDIT REPORT: PRIVILEGED DOCUMENT", or 2 28 labeled with words of similar import. Failure to 2 29 label each document does not constitute a waiver of 2 30 the environmental audit privilege or create a 2 31 presumption that the privilege does or does not apply. 2 32 2. A person shall not be compelled to testify or 2 33 produce a document related to an environmental audit 2 34 in any of the following circumstances: 2 35 a. If the testimony or document discloses any 2 36 component listed in section 455J.2, subsection 3, that 2 37 was made as part of the preparation of an 2 38 environmental audit report and that is addressed in a 2 39 privileged part of an environmental audit report. 2 40 b. If the person is any of the following: 2 41 (1) A person who conducted any portion of the 2 42 environmental audit but did not personally observe the 2 43 physical events of an environmental violation. 2 44 (2) A person to whom the results of the 2 45 environmental audit report are disclosed under section 2 46 455J.4, subsection 2. 2 47 (3) A custodian of the environmental audit report. 2 48 3. A person who conducts or participates in the 2 49 preparation of an environmental audit report and who 2 50 has observed physical events of an environmental 3 1 violation may testify about those events but shall not 3 2 be compelled to testify about or produce documents 3 3 related to the preparation of or any privileged part 3 4 of an environmental audit or any component listed in 3 5 section 455J.2, subsection 3. 3 6 4. An employee of a state agency or other 3 7 governmental employee shall not request, review, or 3 8 otherwise use an environmental audit report during an 3 9 agency inspection of a regulated facility or 3 10 operation, or an activity of a regulated facility or 3 11 operation. 3 12 5. A party asserting the privilege under this 3 13 section has the burden of establishing the 3 14 applicability of the privilege. 3 15 6. The privilege provided in this section is in 3 16 addition to the privilege provided to assistance 3 17 programs pursuant to section 455B.484A. 3 18 Sec. 4. NEW SECTION. 455J.4 WAIVER OF PRIVILEGE 3 19 DISCLOSURE. 3 20 1. The privilege described in section 455J.3 shall 3 21 not apply to the extent that the privilege is 3 22 expressly waived by the owner or operator who prepared 3 23 the environmental audit report or caused the report to 3 24 be prepared. 3 25 2. Disclosure of an environmental audit report or 3 26 any information generated by an environmental audit 3 27 does not waive the privilege established in section 3 28 455J.3 if the disclosure meets any of the following 3 29 criteria: 3 30 a. The disclosure is made to address or correct a 3 31 matter raised by the environmental audit and the 3 32 disclosure is made to any of the following: 3 33 (1) A person employed by the owner or operator, 3 34 including temporary and contract employees. 3 35 (2) A legal representative of the owner or 3 36 operator. 3 37 (3) An officer or director of the regulated 3 38 facility or operation or a partner of the owner or 3 39 operator. 3 40 (4) An independent contractor retained by the 3 41 owner or operator. 3 42 b. The disclosure is made under the terms of a 3 43 confidentiality agreement between the owner or 3 44 operator of the audited facility or operation and any 3 45 of the following: 3 46 (1) A partner or potential partner of the owner or 3 47 operator of the facility or operation. 3 48 (2) A transferee or potential transferee of the 3 49 facility or operation. 3 50 (3) A lender or potential lender for the facility 4 1 or operation. 4 2 (4) A governmental official or agency of this 4 3 state. 4 4 (5) A person or entity engaged in the business of 4 5 insuring, underwriting, or indemnifying the facility 4 6 or operation. 4 7 3. A party to a confidentiality agreement 4 8 described in subsection 2, paragraph "b", who violates 4 9 that agreement is liable for damages caused by the 4 10 disclosure and for any other penalties stipulated in 4 11 the confidentiality agreement. 4 12 4. Information that is disclosed under subsection 4 13 2, paragraph "b", subparagraph (4), is confidential 4 14 and is not subject to disclosure under chapter 22. A 4 15 governmental entity, governmental employee, or 4 16 governmental official who discloses information in 4 17 violation of this subsection is subject to any penalty 4 18 provided in chapter 22. 4 19 5. The protections provided by federal or state 4 20 law shall be afforded to individuals who disclose 4 21 information to law enforcement authorities. 4 22 Sec. 5. NEW SECTION. 455J.5 REQUIRED DISCLOSURE. 4 23 1. A court or a presiding officer in an 4 24 administrative hearing may require disclosure of a 4 25 portion of an environmental audit report in a civil or 4 26 administrative proceeding if the court or presiding 4 27 officer affirmatively determines, after an in camera 4 28 review, that any of the following exists: 4 29 a. The privilege is asserted for a fraudulent 4 30 purpose. 4 31 b. The portion of the environmental audit report 4 32 is not subject to the privilege under section 455J.6. 4 33 c. The portion of the environmental audit report 4 34 shows evidence of noncompliance with a local, state, 4 35 or federal environmental or other law, rule, 4 36 ordinance, or permit condition and appropriate efforts 4 37 to achieve compliance with the law or ordinance were 4 38 not promptly initiated and pursued with reasonable 4 39 diligence after discovery of noncompliance. 4 40 2. A party seeking disclosure under this section 4 41 has the burden of proving that subsection 1 applies. 4 42 3. A decision of a presiding officer in an 4 43 administrative hearing under subsection 1 may be 4 44 directly appealed to the district court without 4 45 disclosure of the environmental audit report to any 4 46 person unless so ordered by the court. 4 47 4. A determination of a court under this section 4 48 is subject to interlocutory appeal to an appropriate 4 49 appellate court. 4 50 Sec. 6. NEW SECTION. 455J.6 MATERIALS NOT 5 1 PRIVILEGED. 5 2 1. The privilege described in this chapter does 5 3 not apply to any of the following: 5 4 a. A document, communication, datum, report, or 5 5 other information required by a regulatory agency to 5 6 be collected, developed, retained, or reported under a 5 7 local, state, or federal environmental law, rule, 5 8 ordinance, or permit condition. 5 9 b. Information obtained by observation, sampling, 5 10 or monitoring by a regulatory agency or a regulatory 5 11 agency's authorized designee. 5 12 c. Information obtained from a source not involved 5 13 in the preparation of the environmental audit report. 5 14 2. This section does not limit the right of a 5 15 person to agree to conduct an environmental audit and 5 16 disclose an environmental audit report. 5 17 Sec. 7. NEW SECTION. 455J.7 REVIEW OF PRIVILEGED 5 18 DOCUMENTS. 5 19 1. If an environmental audit report is obtained, 5 20 reviewed, or used in a criminal proceeding, the 5 21 administrative and civil evidentiary privilege 5 22 established in this chapter is not waived or made 5 23 inapplicable for any purpose other than for the 5 24 criminal proceeding. 5 25 2. Notwithstanding the privilege established in 5 26 this chapter, a regulatory agency may review 5 27 information in an environmental audit report that is 5 28 required to be collected, developed, retained, or 5 29 reported under a specific local, state, or federal 5 30 law, rule, ordinance, or permit condition, but such 5 31 review does not waive or make the administrative and 5 32 civil evidentiary privilege inapplicable. A 5 33 regulatory agency shall not adopt a rule or impose a 5 34 condition that circumvents the purpose of this 5 35 chapter. 5 36 3. If information is required to be made available 5 37 to the public by operation of a specific local, state, 5 38 or federal law, rule, ordinance, or permit condition, 5 39 the governmental authority shall notify the person 5 40 claiming the privilege of the potential for public 5 41 disclosure prior to obtaining such information under 5 42 subsection 1 or 2. 5 43 4. If privileged information is disclosed under 5 44 subsection 2 or 3, on the motion of a party, a court 5 45 or the presiding officer in an administrative hearing 5 46 shall suppress evidence offered in any civil or 5 47 administrative proceeding that arises or is derived 5 48 from review, disclosure, or use of information 5 49 obtained under this section if the review, disclosure, 5 50 or use is not authorized under section 455J.6. A 6 1 party having received information under subsection 2 6 2 or 3 has the burden of proving that the evidence 6 3 offered did not arise and was not derived from the 6 4 review of privileged information. 6 5 Sec. 8. NEW SECTION. 455J.8 VOLUNTARY DISCLOSURE 6 6 OF ENVIRONMENTAL VIOLATION IMMUNITY. 6 7 1. An owner or operator is eligible for immunity 6 8 under this section from the time the department 6 9 receives official notification from the owner or 6 10 operator of a scheduled environmental audit. An owner 6 11 or operator is immune from any administrative or civil 6 12 penalty associated with the issues disclosed if the 6 13 owner or operator makes a prompt voluntary disclosure 6 14 to the department regarding an environmental violation 6 15 which is discovered through the environmental audit. 6 16 The owner or operator shall provide a timetable for 6 17 submitting a remediation schedule to the department 6 18 and information supporting the claim that the 6 19 disclosure is voluntary at the time that the 6 20 disclosure is made to the department. The owner or 6 21 operator creates a rebuttable presumption that the 6 22 disclosure is voluntary by providing such information 6 23 at the time of disclosure. To rebut the presumption 6 24 that a disclosure is voluntary, the department or 6 25 other party has the burden of proving that the 6 26 disclosure was not voluntary. Immunity is not 6 27 provided if the violations of local, state, or federal 6 28 environmental law, rule, ordinance, or permit 6 29 condition are intentional or if the violations of 6 30 local, state, or federal law, rule, ordinance, or 6 31 permit condition resulted in substantial actual injury 6 32 or imminent and substantial risk of injury to persons, 6 33 property, or the environment. 6 34 2. The disclosure of information is voluntary if 6 35 all of the following circumstances exist: 6 36 a. The disclosure arises out of an environmental 6 37 audit and relates to privileged information as 6 38 provided in section 455J.3. 6 39 b. The person making the disclosure uses 6 40 reasonable efforts to pursue compliance and corrects 6 41 the noncompliance within a reasonable period of time 6 42 after completion of the environmental audit in 6 43 accordance with a remediation schedule approved by the 6 44 department. If evidence shows that the noncompliance 6 45 is due to the failure to obtain a permit, reasonable 6 46 effort may be demonstrated by the submittal of a 6 47 complete permit application within a reasonable time. 6 48 Disclosure of information required to be reported by 6 49 local, state, or federal law, rule, ordinance, or 6 50 permit condition is not considered to be voluntary 7 1 disclosure and the immunity provisions in this section 7 2 are not applicable. 7 3 c. Environmental violations are identified in an 7 4 environmental audit report and disclosed before there 7 5 is notice of a citizen suit or a legal complaint by a 7 6 third party. 7 7 d. Environmental violations are identified in an 7 8 environmental audit report and disclosed before the 7 9 environmental violations are reported by any person 7 10 not involved in conducting the environmental audit or 7 11 to whom the environmental audit report was disclosed. 7 12 3. If an owner or operator has not provided the 7 13 department with notification of a scheduled 7 14 environmental audit prior to performing the audit, a 7 15 disclosure of information is voluntary if the 7 16 environmental violations are identified in an 7 17 environmental audit report and disclosed by certified 7 18 mail to the proper regulatory agency that has 7 19 jurisdiction over the disclosed violation prior to the 7 20 agency's commencement of an investigation. 7 21 4. If a person is required to make a disclosure 7 22 relating to a specific issue under a specific permit 7 23 condition or under an order issued by the department, 7 24 the disclosure is not voluntary with respect to that 7 25 issue. 7 26 5. Except as provided in this section, this 7 27 section does not impair the authority of the proper 7 28 regulatory agency to require a technical or remedial 7 29 action or to order injunctive relief. 7 30 6. Upon application to the department, the time 7 31 period within which a noncompliance item is corrected 7 32 under subsection 2 may be extended if it is not 7 33 practical to correct the noncompliance within the 7 34 reasonable period of time initially approved by the 7 35 department. The department shall not unreasonably 7 36 withhold the grant of an extension. If the department 7 37 denies an extension, the department shall provide the 7 38 requesting party with a written explanation of the 7 39 reasons for the denial. A request for de novo review 7 40 of the department's decision may be made to the 7 41 appropriate court. 7 42 7. Immunity provided under this section from 7 43 administrative or civil penalties does not apply under 7 44 any of the following circumstances: 7 45 a. If an owner or operator of the facility or 7 46 operation has been found in a civil or administrative 7 47 proceeding to have committed serious violations in 7 48 this state that constitute a pattern of continuous or 7 49 repeated violations of environmental laws, 7 50 administrative rules, permit conditions, settlement 8 1 agreements, or orders on consent, final orders, or 8 2 judicial orders and that were due to separate and 8 3 distinct events giving rise to the violations within 8 4 the three-year period prior to the date of disclosure, 8 5 or if under another provision of law an owner or 8 6 operator of a facility or operation is subject to 8 7 classification as a repeat or habitual violator. 8 8 b. If a violation of an environmental law, 8 9 administrative rule, permit condition, settlement 8 10 agreement, or order on consent, final order, or 8 11 judicial order results in a substantial economic 8 12 benefit which gives the violator a clear advantage 8 13 over its business competitors. 8 14 8. In cases where the conditions of a voluntary 8 15 disclosure are not met but a good faith effort was 8 16 made to voluntarily disclose and resolve a violation 8 17 detected in an environmental audit, the state and 8 18 local regulatory authorities shall consider the nature 8 19 and extent of any good faith effort in deciding the 8 20 appropriate enforcement response and shall consider 8 21 reducing any administrative or civil penalties based 8 22 on mitigating factors showing that one or more of the 8 23 conditions for voluntary disclosure have been met. 8 24 9. The immunity provided by this section does not 8 25 abrogate the responsibility of a person as provided by 8 26 applicable law to correct the violation, conduct 8 27 necessary remediation, or respond to third-party 8 28 actions. 8 29 Sec. 9. NEW SECTION. 455J.9 ABROGATION OF OTHER 8 30 PRIVILEGES. 8 31 This chapter shall not limit, waive, or abrogate 8 32 the scope or nature of any statutory or common-law 8 33 privilege, including the work product doctrine and the 8 34 attorney-client privilege. 8 35 Sec. 10. NEW SECTION. 455J.10 ENVIRONMENTAL 8 36 AUDITOR TRAINING PROGRAM. 8 37 A training program for and standards for 8 38 certification of environmental auditors shall be 8 39 developed jointly by the Iowa waste reduction center 8 40 and the department. The training program shall be 8 41 administered by the Iowa waste reduction center. The 8 42 program shall provide training on the proper conduct 8 43 of an environmental audit; local, state, and federal 8 44 environmental ordinances, rules, and laws that apply 8 45 to businesses in this state; and the environmental 8 46 audit laws in this state. The program shall be made 8 47 available to small and large business owners and 8 48 operators, consulting engineers, regulatory personnel, 8 49 and citizens through the community college system. A 8 50 fee may be assessed for participation in the program. 9 1 Upon completion of the training program, program 9 2 participants may elect to be tested by the department 9 3 for certification as an environmental auditor for the 9 4 purposes of this chapter. 9 5 Sec. 11. NEW SECTION. 455J.11 SUMMARY. 9 6 On or before December 1 of each year, the 9 7 department shall make available a summary of the 9 8 number of environmental audit notices received, the 9 9 violations, and the remediation status of the 9 10 violations reported pursuant to this chapter during 9 11 the preceding fiscal year. 9 12 Sec. 12. NEW SECTION. 455J.12 RULEMAKING. 9 13 The department may adopt rules pursuant to chapter 9 14 17A necessary to administer this chapter. 9 15 Sec. 13. NEW SECTION. 455J.13 COSTS. 9 16 The necessary costs incurred by the department 9 17 under this chapter shall be funded from appropriations 9 18 made to the department from the general fund of the 9 19 state." 9 20 #2. Title page, by striking lines 1 and 2 and 9 21 inserting the following: "An Act creating an 9 22 environmental audit privilege and immunity, and an 9 23 environmental auditor training program, and providing 9 24 penalties." 9 25 9 26 9 27 9 28 COMMITTEE ON ENVIRONMENTAL 9 29 PROTECTION 9 30 HAHN of Muscatine, Chairperson 9 31 HF 681.210 77 9 32 tm/jl/28
Text: H08053 Text: H08055 Text: H08000 - H08099 Text: H Index Bills and Amendments: General Index Bill History: General Index
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