25-21,261. Voluntary self-evaluation; disclosure; effect; exceptions.

(1) If disclosure is made pursuant to section 25-21,260 and the agency having regulatory authority has approved the action taken or the schedule to achieve compliance, as appropriate, which approval shall not be unreasonably withheld, the person is not liable for civil penalties unless (a) the disclosure was not made within sixty days after knowledge of the information disclosed was obtained by the person and was not disclosed to the agency having regulatory authority prior to the agency having knowledge of the violation contained in the disclosure, (b) the disclosure did not arise out of a voluntary self-evaluation, (c) the person making the disclosure did not initiate the appropriate efforts to achieve compliance, did not pursue compliance with due diligence, and did not correct the noncompliance as soon as reasonably practicable after discovery of the violation during the course of the environmental audit, (d) the person making the disclosure did not cooperate with the agency having regulatory authority with regard to the violation disclosed regarding investigation of the issues identified in the disclosure, (e) the violation was due to a lack of good faith efforts to understand or comply with environmental requirements, (f) the violation was knowing and willful, or (g) the violation would likely result or has resulted in significant adverse impact on the public health or the environment. If the noncompliance under subdivision (c) of this subsection is the failure to obtain a permit, appropriate efforts to correct the noncompliance may be demonstrated by the submission of a complete permit application within a reasonable time and a permit for such activities is subsequently issued by the agency.

(2) This section does not apply to violations of the terms of any agreement entered into or court order or administrative order issued pursuant to an environmental requirement, including, but not limited to, consent decrees or plea agreements.

(3) This section does not preclude the agency having regulatory authority from seeking the recovery of any economic benefit resulting from noncompliance with an environmental requirement.

(4) For purposes of this section, (a) if a person is required, under an environmental requirement, under a specific permit condition, or under an order issued by the agency, to make a disclosure to an agency having regulatory authority with regard to the violation disclosed, the disclosure is not voluntary with respect to that agency, and (b) repeat violations or closely related additional violations within five years after a previous violation shall be prima facie evidence of a lack of good faith efforts to comply with environmental requirements.

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