A. Except as otherwise provided by this act, a person who makes a voluntary disclosure of a violation of an environmental or health and safety law is immune from an administrative or civil penalty for the violation disclosed.

B. A disclosure is voluntary only if:

1. The disclosure was made:

a.promptly after knowledge of the information disclosed is obtained by the person making the disclosure, and

b.no later than forty-five (45) days after the acquisition closing date, if the violation was discovered during an audit conducted before the acquisition closing date by a person considering the acquisition of the regulated facility or operation;

2. Notice of the disclosure was made in writing by certified mail to an agency that has regulatory authority with regard to the violation disclosed;

3. An investigation of the violation was not initiated or the violation was not independently detected by an agency with enforcement jurisdiction before the disclosure was made using certified mail;

4. The disclosure arises out of a voluntary environmental or health and safety audit;

5. The person who makes the disclosure initiates an appropriate effort to achieve compliance, pursues that effort with due diligence, and corrects the noncompliance within a reasonable time;

6. The person making the disclosure cooperates with the appropriate agency in connection with an investigation of the issues identified in the disclosure; and

7. The violation did not result in:

a.injury or imminent and substantial risk of serious injury to one or more persons at the site, or

b.off-site substantial harm or imminent and substantial risk of harm to persons, property, or the environment.

C. For a disclosure described in subparagraph b of paragraph 1 of subsection B of this section, the person making the disclosure must certify in the disclosure that before the acquisition closing date:

1. The person was not responsible for the environmental, health, or safety compliance at the regulated facility or operation that is subject to the disclosure;

2. The person did not have the largest ownership share of the seller;

3. The seller did not have the largest ownership share of the person; and

4. The person and the seller did not have a common corporate parent or a common majority interest owner.

D. A disclosure is not voluntary for purposes of this section if it is a report to a regulatory agency required solely by a specific condition of an enforcement order or decree.

E. The immunity established by subsection A of this section does not apply and an administrative or civil penalty may be imposed under applicable law if:

1. The person who made the disclosure willfully or knowingly committed or was responsible within the meaning of state laws for the commission of the disclosed violation;

2. The person who made the disclosure recklessly committed or was responsible within the meaning of state laws for the commission of the disclosed violation and the violation resulted in substantial injury to one or more persons at the site or off-site harm to persons, property or the environment;

3. The offense was committed willfully or knowingly by a member of the person's management or an agent of the person and the person's policies or lack of prevention systems contributed materially to the occurrence of the violation;

4. The offense was committed recklessly by a member of the person's management or an agent of the person, the person's policies or lack of prevention systems contributed materially to the occurrence of the violation, and the violation resulted in substantial injury to one or more persons at the site or off-site harm to persons, property or the environment; or

5. The violation has resulted in a substantial economic benefit that gives the violator a clear advantage over its business competitors.

F. A penalty that is imposed under subsection D of this section should, to the extent appropriate, be mitigated by factors such as:

1. The voluntariness of the disclosure;

2. Efforts by the disclosing party to conduct environmental or health and safety audits;

3. Remediation;

4. Cooperation with government officials investigating the disclosed violation;

5. The period of ownership of the regulated facility or operation; or

6. Other relevant considerations.

G. In a civil or administrative enforcement action brought against a person for a violation for which the person claims to have made a voluntary disclosure, the person claiming the immunity has the burden of establishing a prima facie case that the disclosure was voluntary. After the person claiming the immunity establishes a prima facie case of voluntary disclosure, other than a case in which under subsections D and E of this section immunity does not apply, the enforcement authority has the burden of rebutting the presumption by a preponderance of the evidence.

H. In order to receive immunity under this section, a facility conducting an environmental or health and safety audit under this act must give notice to an appropriate regulatory agency of the fact that it is planning to commence the audit. The notice shall specify the facility or portion of the facility to be audited, the anticipated time the audit will begin and the general scope of the audit. The notice may provide notification of more than one scheduled environmental or health and safety audit at a time.

I. In order to receive immunity under this section, a potential purchaser:

1. That acquires a regulated facility or operation that is the subject of an audit begun prior to acquisition may continue the audit after the acquisition closing date if, no later than forty-five (45) days after the acquisition closing date, the person provides notice to an appropriate regulatory agency of the fact that the potential purchaser intends to continue the ongoing audit;

2. The notice must specify:

a.the facility or portion of the facility being audited,

b.the date the audit began, and

c.the general scope of the audit; and

3. The potential purchaser must certify that before the acquisition closing date:

a.the potential purchaser was not responsible for the scope of the environmental, health, or safety compliance being audited at the regulated facility of operation,

b.the potential purchaser did not have the largest ownership share of the seller,

c.the seller did not have the largest ownership share of the potential purchaser, and

d.the potential purchaser and the seller did not have a common corporate parent or a common majority interest owner.

J. The immunity under this section does not apply if a court or administrative law judge finds that the person claiming the immunity has, after the effective date of this act:

1. Repeatedly or continuously committed significant violations; and

2. Not attempted to bring the facility or operation into compliance, so as to constitute a pattern of disregard of environmental or health and safety laws.

For violations to be considered a pattern, the person shall have committed a series of violations that were due to separate and distinct events occurring within a three-year period at the same facility or operation.

Added by Laws 2019, c. 229, § 10, eff. Nov. 1, 2019.