House Bill No. 293

Introduced By orr

A Bill for an Act entitled: An Act providing for certain voluntary environmental audits; and providing a termination date.

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

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

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.

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.

Section 4.  Immunity from imposition of civil or administrative penalties for violations found and disclosed. The state or the department may not pursue civil or administrative penalties under this title 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 within 30 days in writing to the department 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].

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 that includes submittal of the following information:

(a) the date of discovery of the violation;

(b) the name and location of the regulated entity;

(c) identification of the law or rule violated;

(d) a description of the conditions relating to or affecting the violation;

(e) compliance efforts made to correct or eliminate the violation;

(f) recommendations for additional compliance efforts, if necessary, to correct or eliminate the violation; and

(g) recommendations necessary to prevent reoccurrence of the violation.

(2) (a) The form submitted to the department in subsection (1) is public information, but the department may not request the environmental audit. The department may request all relevant facts and data that the department needs to independently establish the nature and extent of the violation and to determine whether all damage created by the violation has been corrected. The environmental audit report and its relevant underlying data 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].

Section 6.  Limitations on applicability. (1) [Sections 1 through 5] do not apply to a violation if:

(a) the regulated entity purposely or knowingly committed the violation;

(b) the violation was the result of gross negligence of the regulated entity;

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

(d) the regulated entity has not corrected the violation according to any compliance schedule negotiated pursuant to [section 4];

(e) 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;

(f) (i) the department has assumed primacy over the administration of a federally delegated environmental law or program and [sections 1 through 5] would cause the state program not to meet the delegation requirements for that program; or

(ii) [sections 1 through 5] would prevent the state from obtaining primacy; or

(g) the violation disclosed to the department by the regulated entity caused actual 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.

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.

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].

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].

Section 10. Termination. [This act] terminates October 1, 2001.