Text: S05362 Text: S05364 Text: S05300 - S05399 Text: S Index Bills and Amendments: General Index Bill History: General Index
PAG LIN
1 1 Amend House File 681, as amended, passed, and
1 2 reprinted by the House, as follows:
1 3 #1. By striking everything after the enacting
1 4 clause and inserting the following:
1 5 "Section 1. NEW SECTION. 455J.1 TITLE.
1 6 This chapter shall be known and cited as the
1 7 "Environmental Audit Privilege and Immunity Act".
1 8 Sec. 2. NEW SECTION. 455J.2 DEFINITIONS.
1 9 As used in this chapter, unless the context
1 10 otherwise requires:
1 11 1. "Department" means the department of natural
1 12 resources created under section 455A.2 or its
1 13 delegated authority.
1 14 2. "Environmental audit" means a voluntary
1 15 evaluation of a facility or operation, of an activity
1 16 at a facility or operation, or of an environmental
1 17 management system at a facility or operation, which is
1 18 regulated under state or federal environmental laws,
1 19 rules, or permit conditions, conducted by an owner or
1 20 operator, an employee of the owner or operator, or an
1 21 independent contractor that is designed to identify
1 22 historical or current noncompliance with environmental
1 23 laws, rules, ordinances, or permit conditions,
1 24 discover environmental contamination or hazards,
1 25 remedy noncompliance or improve compliance with
1 26 environmental laws, or improve an environmental
1 27 management system. Once notification is given to the
1 28 department, an environmental audit shall be completed
1 29 within a reasonable time not to exceed six months
1 30 unless an extension is approved by the department
1 31 based on reasonable grounds.
1 32 3. "Environmental audit report" means a document
1 33 or set of documents generated and developed for the
1 34 primary purpose and in the course of or as a result of
1 35 conducting an environmental audit and filed with the
1 36 department. An "environmental audit report" includes
1 37 supporting information which may include, but is not
1 38 limited to, the report document itself, observations,
1 39 samples, analytical results, exhibits, findings,
1 40 opinions, suggestions, recommendations, conclusions,
1 41 drafts, memoranda, drawings, photographs, computer-
1 42 generated or electronically recorded information,
1 43 maps, charts, graphs, surveys, implementation plans,
1 44 interviews, discussions, correspondence, and
1 45 communications related to the environmental audit. An
1 46 "environmental audit report" may include any of the
1 47 following 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 Sec. 3. NEW SECTION. 455J.3 VOLUNTARY DISCLOSURE
2 19 OF ENVIRONMENTAL VIOLATION – IMMUNITY.
2 20 1. An owner or operator is eligible for immunity
2 21 under this section from the time the department
2 22 receives official notification from the owner or
2 23 operator of a scheduled environmental audit. An owner
2 24 or operator is immune from any administrative or civil
2 25 penalty associated with the issues disclosed if the
2 26 owner or operator makes a prompt voluntary disclosure
2 27 to the department regarding an environmental violation
2 28 which is discovered through the environmental audit.
2 29 The owner or operator shall provide a remediation
2 30 schedule to the department as specified by rule and
2 31 information supporting the claim that the disclosure
2 32 is voluntary at the time that the disclosure is made
2 33 to the department. The owner or operator creates a
2 34 rebuttable presumption that the disclosure is
2 35 voluntary by providing such information at the time of
2 36 disclosure. To rebut the presumption that a
2 37 disclosure is voluntary, the department or other party
2 38 has the burden of proving that the disclosure was not
2 39 voluntary. Immunity is not provided if the violations
2 40 of state or federal environmental law, rule, or permit
2 41 condition are intentional or if the violations of
2 42 state or federal law, rule, or permit condition
2 43 resulted in substantial actual injury or imminent and
2 44 substantial risk of injury to persons, property, or
2 45 the environment.
2 46 2. The disclosure of information is voluntary if
2 47 all of the following circumstances exist:
2 48 a. The disclosure arises out of an environmental
2 49 audit.
2 50 b. The person making the disclosure uses
3 1 reasonable efforts to pursue compliance and corrects
3 2 the noncompliance within a reasonable period of time
3 3 after completion of the environmental audit in
3 4 accordance with a remediation schedule approved by the
3 5 department. If evidence shows that the noncompliance
3 6 is due to the failure to obtain a permit, reasonable
3 7 effort may be demonstrated by the submittal of a
3 8 complete permit application within a reasonable time.
3 9 Disclosure of information required to be reported by
3 10 state or federal law, rule, or permit condition is not
3 11 considered to be voluntary disclosure and the immunity
3 12 provisions in this section are not applicable.
3 13 c. Environmental violations are identified in an
3 14 environmental audit report and disclosed before there
3 15 is notice of a citizen suit or a legal complaint by a
3 16 third party.
3 17 d. Environmental violations are identified in an
3 18 environmental audit report and disclosed before the
3 19 environmental violations are reported by any person
3 20 not involved in conducting the environmental audit or
3 21 to whom the environmental audit report was disclosed.
3 22 3. If an owner or operator has not provided the
3 23 department with notification of a scheduled
3 24 environmental audit prior to performing the audit, a
3 25 disclosure of information is voluntary if the
3 26 environmental violations are identified in an
3 27 environmental audit report and disclosed by certified
3 28 mail to the proper regulatory agency that has
3 29 jurisdiction over the disclosed violation prior to the
3 30 agency's commencement of an investigation.
3 31 4. If a person is required to make a disclosure
3 32 relating to a specific issue under a specific permit
3 33 condition or under an order issued by the department,
3 34 the disclosure is not voluntary with respect to that
3 35 issue.
3 36 5. Except as provided in this section, this
3 37 section does not impair the authority of the proper
3 38 regulatory agency to require a technical or remedial
3 39 action or to order injunctive relief.
3 40 6. Upon application to the department, the time
3 41 period within which the disclosed violation is
3 42 corrected under subsection 2 may be extended if it is
3 43 not practical to correct the noncompliance within the
3 44 reasonable period of time initially approved by the
3 45 department. The department shall not unreasonably
3 46 withhold the grant of an extension. If the department
3 47 denies an extension, the department shall provide the
3 48 requesting party with a written explanation of the
3 49 reasons for the denial. A request for de novo review
3 50 of the department's decision may be made to the
4 1 appropriate court.
4 2 7. Immunity provided under this section from
4 3 administrative or civil penalties does not apply under
4 4 any of the following circumstances:
4 5 a. If an owner or operator of the facility or
4 6 operation has been found in a civil or administrative
4 7 proceeding to have committed serious violations in
4 8 this state that constitute a pattern of continuous or
4 9 repeated violations of environmental laws,
4 10 administrative rules, and permit conditions and that
4 11 were due to separate and distinct events giving rise
4 12 to the violations within the three-year period prior
4 13 to the date of disclosure or if a civil or
4 14 administrative proceeding is pending against an owner
4 15 or operator of the facility or operation relating to
4 16 an alleged violation of an environmental law,
4 17 administrative rule, permit condition, settlement
4 18 agreement, or order on consent, final order, or
4 19 judicial order.
4 20 b. If a violation of an environmental law,
4 21 administrative rule, permit condition, settlement
4 22 agreement, or order on consent, final order, or
4 23 judicial order results in a substantial economic
4 24 benefit which gives the violator a clear advantage
4 25 over its business competitors.
4 26 8. In cases where the conditions of a voluntary
4 27 disclosure are not met but a good faith effort was
4 28 made to voluntarily disclose and resolve a violation
4 29 detected in an environmental audit, the state
4 30 regulatory authorities shall consider the nature and
4 31 extent of any good faith effort in deciding the
4 32 appropriate enforcement response and shall consider
4 33 reducing any administrative or civil penalties based
4 34 on mitigating factors showing that one or more of the
4 35 conditions for voluntary disclosure have been met.
4 36 9. The immunity provided by this section does not
4 37 abrogate the responsibility of a person as provided by
4 38 applicable law to report a violation, to correct the
4 39 violation, conduct necessary remediation, or respond
4 40 to third-party actions. This chapter shall not be
4 41 construed to confer immunity from liability in any
4 42 private civil action except those actions brought
4 43 pursuant to section 455B.111.
4 44 Sec. 4. NEW SECTION. 455J.4 PRIVILEGE AND
4 45 CONFIDENTIALITY.
4 46 This chapter shall not limit, waive, or abrogate
4 47 the scope or nature of any statutory or common-law
4 48 privilege, including the work product doctrine and the
4 49 attorney-client privilege. The provisions of this
4 50 chapter shall not abrogate any protections provided by
5 1 federal and state law regarding confidentiality and
5 2 trade secrets.
5 3 Sec. 5. NEW SECTION. 455J.5 ENVIRONMENTAL
5 4 AUDITOR TRAINING PROGRAM.
5 5 A training program for and standards for
5 6 certification of environmental auditors shall be
5 7 developed jointly by the Iowa waste reduction center
5 8 and the department. The training program shall be
5 9 administered by the Iowa waste reduction center. The
5 10 program shall provide training on the proper conduct
5 11 of an environmental audit; local, state, and federal
5 12 environmental ordinances, rules, and laws that apply
5 13 to businesses in this state; and the environmental
5 14 audit laws in this state. The program shall be made
5 15 available to small and large business owners and
5 16 operators, consulting engineers, regulatory personnel,
5 17 and citizens through the community college system. A
5 18 fee may be assessed for participation in the program.
5 19 Upon completion of the training program, program
5 20 participants may elect to be tested by the department
5 21 for certification as an environmental auditor for the
5 22 purposes of this chapter.
5 23 Sec. 6. NEW SECTION. 455J.6 SUMMARY.
5 24 On or before December 1 of each year, the
5 25 department shall make available a summary of the
5 26 number of environmental audit notices received, the
5 27 violations, and the remediation status of the
5 28 violations reported pursuant to this chapter during
5 29 the preceding fiscal year.
5 30 Sec. 7. NEW SECTION. 455J.7 RULEMAKING.
5 31 The department shall adopt rules pursuant to
5 32 chapter 17A necessary to administer this chapter.
5 33 Sec. 8. NEW SECTION. 455J.8 COSTS.
5 34 The necessary costs incurred by the department
5 35 under this chapter shall be funded from appropriations
5 36 made to the department from the general fund of the
5 37 state."
5 38 #2. Title page, line 1, by striking the words
5 39 "privilege and".
5 40
5 41
5 42
5 43 TOM VILSACK
5 44 MARY A. LUNDBY
5 45 HF 681.542 77
5 46 tm/jw/28
Text: S05362 Text: S05364 Text: S05300 - S05399 Text: S Index Bills and Amendments: General Index Bill History: General Index
© 1998 Cornell College and League of Women Voters of Iowa
Comments about this site or page?
webmaster@legis.iowa.gov.
Please remember that the person listed above does not vote on bills. Direct all comments concerning legislation to State Legislators.
Last update: Wed Mar 25 03:46:07 CST 1998
URL: /DOCS/GA/77GA/Legislation/S/05300/S05363/980324.html
jhf