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House File 681

Partial Bill History

Bill Text

PAG LIN
  1  1                                           HOUSE FILE 681
  1  2 
  1  3                             AN ACT
  1  4 CREATING AN ENVIRONMENTAL AUDIT PRIVILEGE AND IMMUNITY,
  1  5    AND AN ENVIRONMENTAL AUDITOR TRAINING PROGRAM, AND 
  1  6    PROVIDING PENALTIES.  
  1  7 
  1  8 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 
  1  9 
  1 10    Section 1.  NEW SECTION.  455J.1  TITLE.
  1 11    This chapter shall be known and cited as the "Environmental
  1 12 Audit Privilege and Immunity Act".
  1 13    Sec. 2.  NEW SECTION.  455J.2  DEFINITIONS.
  1 14    As used in this chapter, unless the context otherwise
  1 15 requires:
  1 16    1.  "Department" means the department of natural resources
  1 17 created under section 455A.2 or its delegated authority.
  1 18    2.  "Environmental audit" means a voluntary evaluation of a
  1 19 facility or operation, of an activity at a facility or
  1 20 operation, or of an environmental management system at a
  1 21 facility or operation when the facility, operation, or
  1 22 activity is regulated under state or federal environmental
  1 23 laws, rules, or permit conditions, conducted by an owner or
  1 24 operator, an employee of the owner or operator, or an
  1 25 independent contractor retained by the owner or operator that
  1 26 is designed to identify historical or current noncompliance
  1 27 with environmental laws, rules, ordinances, or permit
  1 28 conditions, discover environmental contamination or hazards,
  1 29 remedy noncompliance or improve compliance with environmental
  1 30 laws, or improve an environmental management system.  Once
  1 31 notification is given to the department, an environmental
  1 32 audit shall be completed within a reasonable time not to
  1 33 exceed six months unless an extension is approved by the
  1 34 department based on reasonable grounds.
  1 35    3.  "Environmental audit report" means a document or set of
  2  1 documents generated and developed for the primary purpose and
  2  2 in the course of or as a result of conducting an environmental
  2  3 audit.  An "environmental audit report" includes supporting
  2  4 information which may include, but is not limited to, the
  2  5 report document itself, observations, samples, analytical
  2  6 results, exhibits, findings, opinions, suggestions,
  2  7 recommendations, conclusions, drafts, memoranda, drawings,
  2  8 photographs, computer-generated or electronically recorded
  2  9 information, maps, charts, graphs, surveys, implementation
  2 10 plans, interviews, discussions, correspondence, and
  2 11 communications related to the environmental audit.  An
  2 12 "environmental audit report" may include any of the following
  2 13 components:
  2 14    a.  An executive summary prepared by the person conducting
  2 15 the environmental audit which may include the scope of the
  2 16 environmental audit, the information gained in the
  2 17 environmental audit, conclusions, recommendations, exhibits,
  2 18 and appendices.
  2 19    b.  Memoranda and documents analyzing portions or all of
  2 20 the report and discussing implementation issues.
  2 21    c.  An implementation plan which addresses correcting past
  2 22 noncompliance, improving current compliance or an
  2 23 environmental management system, or preventing future
  2 24 noncompliance.
  2 25    d.  Periodic updates documenting progress in completing the
  2 26 implementation plan.
  2 27    4.  "Inquiring party" means any party appearing before a
  2 28 court or a presiding officer in an administrative proceeding
  2 29 seeking to review or obtain an in camera review of an
  2 30 environmental audit report.
  2 31    5.  "Owner or operator" means the person or entity who
  2 32 caused the environmental audit to be undertaken.
  2 33    6.  "Privilege" means the protections provided in regard to
  2 34 an environmental audit report as provided in this chapter.
  2 35    Sec. 3.  NEW SECTION.  455J.3  PRIVILEGE.
  3  1    1.  Material included in an environmental audit report
  3  2 generated during an environmental audit conducted after the
  3  3 effective date of this Act is privileged and confidential and
  3  4 is not discoverable or admissible as evidence in any civil or
  3  5 administrative proceeding, except as otherwise provided in
  3  6 this chapter.  The environmental audit report shall be labeled
  3  7 "ENVIRONMENTAL AUDIT REPORT:  PRIVILEGED DOCUMENT".  Failure
  3  8 to label each document within the report does not constitute a
  3  9 waiver of the environmental audit privilege or create a
  3 10 presumption that the privilege does or does not apply.
  3 11    2.  A person shall not be compelled to testify in regard to
  3 12 or produce a document included in an environmental audit
  3 13 report in any of the following circumstances:
  3 14    a.  If the testimony or document discloses any component
  3 15 listed in section 455J.2, subsection 3, that was made as part
  3 16 of the preparation of an environmental audit report and that
  3 17 is addressed in a privileged part of an environmental audit
  3 18 report.
  3 19    b.  If the person is any of the following:
  3 20    (1)  A person who conducted any portion of the
  3 21 environmental audit but did not personally observe the
  3 22 physical events of an environmental violation.
  3 23    (2)  A person to whom the results of the environmental
  3 24 audit report are disclosed under section 455J.4, subsection 2.
  3 25    (3)  A custodian of the environmental audit report.
  3 26    3.  A person who conducts or participates in the
  3 27 preparation of an environmental audit report and who has
  3 28 observed physical events of an environmental violation may
  3 29 testify about those events but shall not be compelled to
  3 30 testify about or produce documents related to the preparation
  3 31 of or any privileged part of an environmental audit or any
  3 32 component listed in section 455J.2, subsection 3.
  3 33    4.  An employee of a state agency or other governmental
  3 34 employee shall not request, review, or otherwise use an
  3 35 environmental audit report during an agency inspection of a
  4  1 regulated facility or operation, or an activity of a regulated
  4  2 facility or operation.
  4  3    5.  A party asserting the privilege under this section has
  4  4 the burden of establishing the applicability of the privilege.
  4  5    6.  The privilege provided in this section is in addition
  4  6 to the privilege provided to assistance programs pursuant to
  4  7 section 455B.484A.
  4  8    Sec. 4.  NEW SECTION.  455J.4  WAIVER OF PRIVILEGE –
  4  9 DISCLOSURE.
  4 10    1.  The privilege described in section 455J.3 shall not
  4 11 apply to the extent that the privilege is expressly waived in
  4 12 writing by the owner or operator who prepared the
  4 13 environmental audit report or caused the report to be
  4 14 prepared.
  4 15    2.  Disclosure of an environmental audit report or any
  4 16 other information generated by an environmental audit does not
  4 17 waive the privilege established in section 455J.3 if the
  4 18 disclosure meets any of the following criteria:
  4 19    a.  The disclosure is made to address or correct a matter
  4 20 raised by the environmental audit and the disclosure is made
  4 21 to any of the following:
  4 22    (1)  A person employed by the owner or operator, including
  4 23 temporary and contract employees.
  4 24    (2)  A legal representative of the owner or operator.
  4 25    (3)  An officer or director of the regulated facility or
  4 26 operation or a partner of the owner or operator.
  4 27    (4)  An independent contractor retained by the owner or
  4 28 operator.
  4 29    b.  The disclosure is made under the terms of a
  4 30 confidentiality agreement between any person and the owner or
  4 31 operator of the audited facility or operation.
  4 32    3.  A party to a confidentiality agreement described in
  4 33 subsection 2, paragraph "b", who violates that agreement is
  4 34 liable for damages caused by the disclosure and for any other
  4 35 penalties stipulated in the confidentiality agreement.
  5  1    4.  Information that is disclosed under subsection 2,
  5  2 paragraph "b", is confidential and is not subject to
  5  3 disclosure under chapter 22.  A governmental entity,
  5  4 governmental employee, or governmental official who discloses
  5  5 information in violation of this subsection is subject to the
  5  6 penalty provided in section 22.6.
  5  7    5.  The protections provided by federal or state law shall
  5  8 be afforded to individuals who disclose information to law
  5  9 enforcement authorities.
  5 10    6.  The provisions of this chapter shall not abrogate the
  5 11 protections provided by federal and state law regarding
  5 12 confidentiality and trade secrets.
  5 13    Sec. 5.  NEW SECTION.  455J.5  REQUIRED DISCLOSURE.
  5 14    1.  A court or a presiding officer in an administrative
  5 15 hearing may require disclosure of a portion of an
  5 16 environmental audit report in a civil or administrative
  5 17 proceeding if the court or presiding officer affirmatively
  5 18 determines, after an in camera review, that any of the
  5 19 following exists:
  5 20    a.  The privilege is asserted for a fraudulent purpose.
  5 21    b.  The portion of the environmental audit report is not
  5 22 subject to the privilege under section 455J.6.
  5 23    c.  The portion of the environmental audit report shows
  5 24 evidence of noncompliance with a state or federal
  5 25 environmental or other law, rule, or permit condition and
  5 26 appropriate efforts to achieve compliance with the law or
  5 27 ordinance were not promptly initiated and pursued with
  5 28 reasonable diligence after discovery of noncompliance.
  5 29    d.  The portion of the environmental audit report shows
  5 30 clear and convincing evidence of substantial actual personal
  5 31 injury, which information is not otherwise available.
  5 32    e.  The portion of the environmental audit report shows a
  5 33 clear and present danger to the public health or the
  5 34 environment.
  5 35    2.  A party seeking disclosure under this section has the
  6  1 burden of proving that subsection 1 applies.
  6  2    3.  A decision of a presiding officer in an administrative
  6  3 hearing under subsection 1 may be directly appealed to the
  6  4 district court without disclosure of the environmental audit
  6  5 report to any person unless so ordered by the court.
  6  6    4.  A determination of a court under this section is
  6  7 subject to interlocutory appeal to an appropriate appellate
  6  8 court.
  6  9    5.  If a court finds that a person claiming privilege under
  6 10 this chapter intentionally claimed the privilege for material
  6 11 not privileged as provided in section 455J.6, the person is
  6 12 subject to a fine not to exceed one thousand dollars.
  6 13    6.  Privilege provided in this chapter does not apply if an
  6 14 owner or operator of the facility or operation has been found
  6 15 in a civil or administrative proceeding to have committed
  6 16 serious violations in this state that constitute a pattern of
  6 17 continuous or repeated violations of environmental laws,
  6 18 administrative rules, or permit conditions, that were due to
  6 19 separate and distinct events giving rise to the violations
  6 20 within the three-year period prior to the date of disclosure.
  6 21    Sec. 6.  NEW SECTION.  455J.6  MATERIALS NOT PRIVILEGED.
  6 22    1.  The privilege described in this chapter does not apply
  6 23 to any of the following:
  6 24    a.  A document, communication, datum, report, or other
  6 25 information required by a regulatory agency to be collected,
  6 26 developed, retained, or reported under a state or federal
  6 27 environmental law, rule, or permit condition.
  6 28    b.  Information obtained by observation, sampling, or
  6 29 monitoring by a regulatory agency or a regulatory agency's
  6 30 authorized designee.
  6 31    c.  Information obtained from a source not involved in the
  6 32 preparation of the environmental audit report.
  6 33    2.  This section does not limit the right of a person to
  6 34 agree to conduct an environmental audit and disclose an
  6 35 environmental audit report.
  7  1    Sec. 7.  NEW SECTION.  455J.7  REVIEW OF PRIVILEGED
  7  2 DOCUMENTS.
  7  3    1.  The privileges created in this chapter shall not apply
  7  4 to criminal investigations or proceedings.  An environmental
  7  5 audit report, supporting documents, and testimony relating
  7  6 thereto may be obtained by a prosecutor's subpoena pursuant to
  7  7 the rules of criminal procedure.  If an environmental audit
  7  8 report is obtained, reviewed, or used in a criminal
  7  9 investigation or proceeding, the administrative and civil
  7 10 evidentiary privilege established in this chapter is not
  7 11 waived or made inapplicable for any purpose other than for the
  7 12 criminal investigation or proceeding.
  7 13    2.  Notwithstanding the privilege established in this
  7 14 chapter, the department may review information in an
  7 15 environmental audit report, but such review does not waive or
  7 16 make the administrative and civil evidentiary privilege
  7 17 inapplicable to the report.  A regulatory agency shall not
  7 18 adopt a rule or impose a condition that circumvents the
  7 19 purpose of this chapter.
  7 20    3.  If information is required to be made available to the
  7 21 public by operation of a specific state or federal law, rule,
  7 22 or permit condition, the governmental authority shall notify
  7 23 the person claiming the privilege of the potential for public
  7 24 disclosure prior to obtaining such information under
  7 25 subsection 1 or 2.
  7 26    4.  If privileged information is disclosed under subsection
  7 27 2 or 3, on the motion of a party, a court or the presiding
  7 28 officer in an administrative hearing shall suppress evidence
  7 29 offered in any civil or administrative proceeding that arises
  7 30 or is derived from review, disclosure, or use of information
  7 31 obtained under this section if the review, disclosure, or use
  7 32 is not authorized under section 455J.6.  A party having
  7 33 received information under subsection 2 or 3 has the burden of
  7 34 proving that the evidence offered did not arise and was not
  7 35 derived from the review of privileged information.
  8  1    Sec. 8.  NEW SECTION.  455J.8  VOLUNTARY DISCLOSURE OF
  8  2 ENVIRONMENTAL VIOLATION – IMMUNITY.
  8  3    1.  An owner or operator is eligible for immunity under
  8  4 this section from the time the department receives official
  8  5 notification from the owner or operator of a scheduled
  8  6 environmental audit.  An owner or operator is immune from any
  8  7 administrative or civil penalty associated with the
  8  8 information disclosed if the owner or operator makes a prompt
  8  9 voluntary disclosure to the department regarding an
  8 10 environmental violation which is discovered through the
  8 11 environmental audit.  The owner or operator creates a
  8 12 rebuttable presumption that the disclosure is voluntary by
  8 13 meeting the criteria provided in subsection 2 at the time of
  8 14 disclosure.  To rebut the presumption that a disclosure is
  8 15 voluntary, the department or other party has the burden of
  8 16 proving that the disclosure was not voluntary.  Immunity is
  8 17 not provided if the violations of state or federal
  8 18 environmental law, rule, or permit condition are intentional
  8 19 or if the violations of state or federal law, rule, or permit
  8 20 condition resulted in substantial actual injury or imminent
  8 21 and substantial risk of injury to persons, property, or the
  8 22 environment.
  8 23    2.  The disclosure of information is voluntary if all of
  8 24 the following circumstances exist:
  8 25    a.  The disclosure arises out of an environmental audit and
  8 26 relates to privileged information as provided in section
  8 27 455J.3.
  8 28    b.  The person making the disclosure uses reasonable
  8 29 efforts to pursue compliance and to correct the noncompliance
  8 30 within a reasonable period of time after completion of the
  8 31 environmental audit in accordance with a remediation schedule
  8 32 submitted to and approved by the department.  If evidence
  8 33 shows that the noncompliance is due to the failure to obtain a
  8 34 permit, reasonable effort may be demonstrated by the submittal
  8 35 of a complete permit application within a reasonable time.
  9  1 Disclosure of information required to be reported by state or
  9  2 federal law, rule, or permit condition is not considered to be
  9  3 voluntary disclosure and the immunity provisions in this
  9  4 section are not applicable.
  9  5    c.  Environmental violations are identified in an
  9  6 environmental audit report and disclosed to the department
  9  7 before there is notice of a citizen suit or a legal complaint
  9  8 by a third party.
  9  9    d.  Environmental violations are identified in an
  9 10 environmental audit report and disclosed to the department
  9 11 before the environmental violations are reported by any person
  9 12 not involved in conducting the environmental audit or to whom
  9 13 the environmental audit report was disclosed.
  9 14    3.  If an owner or operator has not provided the department
  9 15 with notification of a scheduled environmental audit prior to
  9 16 performing the audit, a disclosure of information is voluntary
  9 17 if the environmental violations are identified in an
  9 18 environmental audit report and disclosed by certified mail to
  9 19 the proper regulatory agency that has jurisdiction over the
  9 20 disclosed violation prior to the agency's commencement of an
  9 21 investigation.
  9 22    4.  If a person is required to make a disclosure relating
  9 23 to a specific issue under a specific permit condition or under
  9 24 an order issued by the department, the disclosure is not
  9 25 voluntary with respect to that issue.
  9 26    5.  Except as provided in this section, this section does
  9 27 not impair the authority of the proper regulatory agency to
  9 28 require a technical or remedial action or to order injunctive
  9 29 relief.
  9 30    6.  Upon application to the department, the time period
  9 31 within which the disclosed violation is corrected under
  9 32 subsection 2 may be extended if it is not practical to correct
  9 33 the noncompliance within the reasonable period of time
  9 34 initially approved by the department.  The department shall
  9 35 not unreasonably withhold the grant of an extension.  If the
 10  1 department denies an extension, the department shall provide
 10  2 the requesting party with a written explanation of the reasons
 10  3 for the denial.  A request for de novo review of the
 10  4 department's decision may be made to the appropriate court.
 10  5    7.  Immunity provided under this section from
 10  6 administrative or civil penalties does not apply under any of
 10  7 the following circumstances:
 10  8    a.  If an owner or operator of the facility or operation
 10  9 has been found in a civil or administrative proceeding to have
 10 10 committed serious violations in this state that constitute a
 10 11 pattern of continuous or repeated violations of environmental
 10 12 laws, administrative rules, and permit conditions and that
 10 13 were due to separate and distinct events giving rise to the
 10 14 violations within the three-year period prior to the date of
 10 15 disclosure, or if under section 455B.191 an owner or operator
 10 16 of a facility or operation is classified as a habitual
 10 17 violator.
 10 18    b.  If a violation of an environmental law, administrative
 10 19 rule, permit condition, settlement agreement, or order on
 10 20 consent, final order, or judicial order results in a
 10 21 substantial economic benefit which gives the violator a clear
 10 22 advantage over its business competitors.
 10 23    8.  In cases where the conditions of a voluntary disclosure
 10 24 are not met but a good faith effort was made to voluntarily
 10 25 disclose and resolve a violation detected in an environmental
 10 26 audit, the state regulatory authorities shall consider the
 10 27 nature and extent of any good faith effort in deciding the
 10 28 appropriate enforcement response and shall consider reducing
 10 29 any administrative or civil penalties based on mitigating
 10 30 factors showing that one or more of the conditions for
 10 31 voluntary disclosure have been met.
 10 32    9.  The immunity provided by this section does not abrogate
 10 33 the responsibility of a person as provided by applicable law
 10 34 to report a violation, to correct the violation, conduct
 10 35 necessary remediation, or respond to third-party actions.
 11  1 This chapter shall not be construed to confer immunity from
 11  2 liability in any private civil action except those actions
 11  3 brought pursuant to section 455B.111.
 11  4    10.  Information required by rule to be submitted to the
 11  5 department as part of a disclosure made pursuant to this
 11  6 section is not privileged information.
 11  7    Sec. 9.  NEW SECTION.  455J.9  ABROGATION OF OTHER
 11  8 PRIVILEGES.
 11  9    This chapter shall not limit, waive, or abrogate the scope
 11 10 or nature of any statutory or common-law privilege, including
 11 11 the work product doctrine and the attorney-client privilege.
 11 12    Sec. 10.  NEW SECTION.  455J.10  ENVIRONMENTAL AUDITOR
 11 13 TRAINING PROGRAM.
 11 14    A training program for and standards for certification of
 11 15 environmental auditors shall be developed jointly by the Iowa
 11 16 waste reduction center and the department.  The training
 11 17 program shall be administered by the Iowa waste reduction
 11 18 center.  The program shall provide training on the proper
 11 19 conduct of an environmental audit; local, state, and federal
 11 20 environmental ordinances, rules, and laws that apply to
 11 21 businesses in this state; and the environmental audit laws in
 11 22 this state.  The program shall be made available to small and
 11 23 large business owners and operators, consulting engineers,
 11 24 regulatory personnel, and citizens through the community
 11 25 college system.  A fee may be assessed for participation in
 11 26 the program.  Upon completion of the training program, program
 11 27 participants may elect to be tested by the department for
 11 28 certification as an environmental auditor for the purposes of
 11 29 this chapter.
 11 30    Sec. 11.  NEW SECTION.  455J.11  SUMMARY.
 11 31    On or before December 1 of each year, the department shall
 11 32 make available a summary of the number of environmental audit
 11 33 notices received, the violations, and the remediation status
 11 34 of the violations reported pursuant to this chapter during the
 11 35 preceding fiscal year.
 12  1    Sec. 12.  NEW SECTION.  455J.12  RULEMAKING.
 12  2    The department shall adopt rules pursuant to chapter 17A
 12  3 necessary to administer this chapter.
 12  4    Sec. 13.  NEW SECTION.  455J.13  COSTS.
 12  5    The necessary costs incurred by the department under this
 12  6 chapter shall be funded from appropriations made to the
 12  7 department from the general fund of the state.  
 12  8 
 12  9 
 12 10                                                             
 12 11                               RON J. CORBETT
 12 12                               Speaker of the House
 12 13 
 12 14 
 12 15                                                             
 12 16                               MARY E. KRAMER
 12 17                               President of the Senate
 12 18 
 12 19    I hereby certify that this bill originated in the House and
 12 20 is known as House File 681, Seventy-seventh General Assembly.
 12 21 
 12 22 
 12 23                                                             
 12 24                               ELIZABETH ISAACSON
 12 25                               Chief Clerk of the House
 12 26 Approved                , 1998
 12 27 
 12 28 
 12 29                         
 12 30 TERRY E. BRANSTAD
 12 31 Governor
     

Text: HF00680                           Text: HF00682
Text: HF00600 - HF00699                 Text: HF Index
Bills and Amendments: General Index     Bill History: General Index

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