House Bill No. 293

Introduced By _______________________________________________________________________________

A Bill for an Act entitled: "An Act providing for certain voluntary environmental audits."

Be it enacted by the Legislature of the State of Montana:

NEW SECTION. Section 1. Short title. [Sections 1 through 6] may be cited as the "Voluntary Environmental Audit Act".

NEW SECTION. Section 2. Purpose. The legislature finds that environmental protection and environmental quality will be enhanced by incentives to voluntarily identify and remedy violations of environmental laws and that the public will be benefited by the voluntary identification and remedy. The legislature further finds that nothing in [sections 3 through 6] is intended to inhibit or to be a substitute for the exercise of the regulatory authority by those agencies entrusted with protecting Montana's environment.

NEW SECTION. Section 3. Definitions. As used in [sections 1 through 6], the following definitions apply:

(1) "Department" means the:

(a) department of justice provided for in 2-15-2001;

(b) department of agriculture provided for in 2-15-3001; or

(c) department of environmental quality provided for in 2-15-3501.

(2) "Environmental audit" is a periodic, documented, voluntary internal assessment, evaluation, or review not required by law, rule, or permit that is conducted by a regulated entity or its agent and initiated by the regulated entity for the purpose of determining compliance with environmental law, rule, or permit enforced by the department.

NEW SECTION. Section 4.  Immunity from imposition of civil, criminal, or administrative penalties for violations found and disclosed. Except for a violation of Title 82, chapter 4, parts 1 and 2, the department may not pursue civil or administrative penalties or criminal prosecution or penalties against a regulated entity or its agent acting within the scope of the agent's authority for violations discovered during an environmental audit and disclosed to the department in writing within 30 days after the violation is determined to exist if the following conditions are met:

(1) a written compliance schedule is negotiated between the department and the regulated entity to promptly correct violations disclosed unless the violation has been resolved to the satisfaction of the department at the time of the disclosure;

(2) the regulated entity takes steps to prevent recurrence of the violation; and

(3) the regulated entity cooperates with the department and provides information that is necessary for the implementation of [sections 1 through 6].

NEW SECTION. Section 5.  Submission and use of environmental audit information. (1) If a regulated entity discloses a violation to the department that is found during an environmental audit, the disclosure must be submitted on a form provided by the department and must include all information requested on the department form.

(2) (a) The department may not request an environmental audit. Information compiled by the regulated entity as a result of an environmental audit is subject to discovery according to the rules of civil or criminal procedure. Any information contained in an environmental audit form pertaining to violations that were discovered as a result of the audit and disclosed and corrected as required by [sections 1 through 6] may not be used by the department against the regulated entity in any administrative hearing or judicial action.

(b) The prohibition in subsection (2)(a) does not apply to the use of voluntary statements made in connection with the information when offered for impeachment purposes or in a subsequent action for perjury, false statement, or contempt.

(3) Documents, communications, compliance data, reports, or other information required to be collected, developed, maintained, or reported to the department according to state law, rule, or permit are not covered by the provisions of [sections 1 through 6].

NEW SECTION. Section 6.  Limitations on applicability. (1) [Sections 1 through 6] do not apply if:

(a) the regulated entity purposely or knowingly violated state or federal environmental law, rule, regulation, or permit;

(b) the regulated entity has established a pattern of repeatedly violating an environmental law, rule, regulation, permit, order, or compliance schedule within the 3 years before the date of the disclosure at the same facility;

(c) the regulated entity has not corrected the violations according to the negotiated compliance schedule described in [sections 1 through 6];

(d) before the date of the environmental audit through which a violation was discovered, an investigation or an administrative or judicial proceeding regarding the specific voluntarily disclosed violation is initiated by the department;

(e) after [the effective date of this act], a federal agency specifically prohibits the use of environmental audits as a condition for maintaining or obtaining primacy over a federally delegated program; or

(f) the violation disclosed to the department by the regulated entity caused substantial damage to human health or the environment.

(2) An environmental audit may not be used to prevent the department from carrying out its statutory or regulatory functions.

NEW SECTION. Section 7.  Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.

NEW SECTION. Section 8.  Saving clause. [This act] does not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before [the effective date of this act].

NEW SECTION. Section 9.  Codification instruction. [Sections 1 through 6] are intended to be codified as an integral part of Titles 75 and 80, and the provisions of Titles 75 and 80 apply to [sections 1 through 6].