By Tillery H.B. No. 1571
75R5102 MI-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to environmental and health and safety audits.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 2, Texas Environmental, Health, and
1-5 Safety Audit Privilege Act (Article 4447cc, Vernon's Texas Civil
1-6 Statutes), is amended to read as follows:
1-7 Sec. 2. PURPOSE. The purpose of this Act is to encourage
1-8 voluntary compliance with environmental and occupational health and
1-9 safety laws through the use of audits of past activities at
1-10 regulated facilities or operations.
1-11 SECTION 2. Section 3(c), Texas Environmental, Health, and
1-12 Safety Audit Privilege Act (Article 4447cc, Vernon's Texas Civil
1-13 Statutes), is amended to read as follows:
1-14 (c) For purposes of this Act, a person acts knowingly, or
1-15 with knowledge, with respect to the nature of the person's conduct
1-16 when the person is or should be aware of the person's physical
1-17 acts. A person acts knowingly, or with knowledge, with respect to
1-18 the result of the person's conduct when the person is aware that
1-19 the conduct will likely cause the result.
1-20 SECTION 3. Sections 4(c), (d), and (e), Texas
1-21 Environmental, Health, and Safety Audit Privilege Act (Article
1-22 4447cc, Vernon's Texas Civil Statutes), are amended to read as
1-23 follows:
1-24 (c) The types of exhibits and appendices that may be
2-1 contained in an audit report include supporting information that is
2-2 collected or developed for the primary purpose of and in the course
2-3 of an environmental or health and safety audit, including:
2-4 (1) interviews with current or former employees;
2-5 (2) field notes and records of observations;
2-6 (3) findings, opinions, suggestions, conclusions,
2-7 guidance, notes, drafts, and memoranda;
2-8 (4) legal analyses;
2-9 (5) drawings;
2-10 (6) photographs;
2-11 (7) [laboratory analyses and other analytical data;]
2-12 [(8)] computer-generated or electronically recorded
2-13 information;
2-14 (8) [(9)] maps, charts, graphs, and surveys of land;
2-15 and
2-16 (9) [(10)] other communications associated with an
2-17 environmental or health and safety audit.
2-18 (d) To facilitate identification, each document in an audit
2-19 report should be labeled "COMPLIANCE REPORT[: PRIVILEGED
2-20 DOCUMENT,]" [or labeled with words of similar import. Failure to
2-21 label a document under this section does not constitute a waiver of
2-22 the audit privilege or create a presumption that the privilege does
2-23 or does not apply].
2-24 (e) Once initiated, an audit shall be completed within a
2-25 reasonable time not to exceed three [six] months unless an
2-26 extension is approved by the governmental entity with regulatory
2-27 authority over the regulated facility or operation based on
3-1 reasonable grounds.
3-2 SECTION 4. Sections 10(a), (b), and (f), Texas
3-3 Environmental, Health, and Safety Audit Privilege Act (Article
3-4 4447cc, Vernon's Texas Civil Statutes), are amended to read as
3-5 follows:
3-6 (a) Except as provided by this section, a person who makes a
3-7 voluntary disclosure of a violation of an environmental or health
3-8 and safety law is entitled to limited immunity [immune] from an
3-9 amount not to exceed 60 percent of an administrative, civil, or
3-10 criminal penalty for the violation disclosed to the extent that the
3-11 limited immunity does not preclude the collection of a penalty
3-12 equal to the economic benefit gained by the person through the act
3-13 of violation. A person who makes a voluntary disclosure of a
3-14 violation of an environmental or health and safety law and has
3-15 taken all steps reasonable and necessary to correct any adverse
3-16 impact of the violation disclosed and any other violation
3-17 identified at the regulated facility or operation may receive
3-18 limited immunity from an amount not to exceed 80 percent of an
3-19 administrative, civil, or criminal penalty for the violation
3-20 disclosed.
3-21 (b) A disclosure is voluntary only if:
3-22 (1) the disclosure was made promptly after knowledge
3-23 of the information disclosed is obtained by the person;
3-24 (2) the disclosure was made in writing by certified
3-25 mail to an agency that has regulatory authority with regard to the
3-26 violation disclosed;
3-27 (3) an investigation of the violation was not
4-1 initiated or the violation was not independently detected by an
4-2 agency with enforcement jurisdiction before the disclosure was made
4-3 using certified mail;
4-4 (4) the disclosure arises out of a voluntary
4-5 environmental or health and safety audit;
4-6 (5) the person who makes the disclosure initiates an
4-7 appropriate effort to achieve compliance, pursues that effort with
4-8 due diligence, and corrects the noncompliance within a reasonable
4-9 time;
4-10 (6) the person making the disclosure cooperates with
4-11 the appropriate agency in connection with an investigation of the
4-12 issues identified in the disclosure; and
4-13 (7) the violation did not result in injury to one or
4-14 more persons at the site or [substantial off-site harm] to one or
4-15 more persons, property, or the environment offsite.
4-16 (f) In a civil, administrative, or criminal enforcement
4-17 action brought against a person for a violation for which the
4-18 person claims to have made a voluntary disclosure, the person
4-19 claiming the immunity has the burden of proving [establishing a
4-20 prima facie case] that the disclosure was voluntary. [After the
4-21 person claiming the immunity establishes a prima facie case of
4-22 voluntary disclosure, other than a case in which under Subsection
4-23 (d) of this section immunity does not apply, the enforcement
4-24 authority has the burden of rebutting the presumption by a
4-25 preponderance of the evidence or, in a criminal case, by proof
4-26 beyond a reasonable doubt.]
4-27 SECTION 5. Section 12, Texas Environmental, Health, and
5-1 Safety Audit Privilege Act (Article 4447cc, Vernon's Texas Civil
5-2 Statutes), is amended to read as follows:
5-3 Sec. 12. APPLICABILITY. This Act does not apply in an
5-4 action brought to enforce an environmental or health law in federal
5-5 court by anyone other than a representative of the state government
5-6 [The privilege created by this Act applies to environmental or
5-7 health and safety audits that are conducted on or after the
5-8 effective date of this Act].
5-9 SECTION 6. Sections 5, 6, 7, 8, 9, and 13, Texas
5-10 Environmental, Health, and Safety Audit Privilege Act (Article
5-11 4447cc, Vernon's Texas Civil Statutes), are repealed.
5-12 SECTION 7. (a) This Act takes effect September 1, 1997.
5-13 (b) The change in law made by this Act does not apply in an
5-14 administrative, civil, or criminal action brought before the
5-15 effective date of this Act.
5-16 SECTION 8. The importance of this legislation and the
5-17 crowded condition of the calendars in both houses create an
5-18 emergency and an imperative public necessity that the
5-19 constitutional rule requiring bills to be read on three several
5-20 days in each house be suspended, and this rule is hereby suspended.