By Chisum                                       H.B. No. 3459

      75R5226 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 8(a), 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           (a)  The privilege described in this Act does not apply to:

 1-8                 (1)  a document, communication, datum, or report or

 1-9     other information required by a regulatory agency to be collected,

1-10     developed, maintained, or reported under a federal or state

1-11     environmental or health and safety law;

1-12                 (2)  information obtained by observation, sampling, or

1-13     monitoring by a regulatory agency; [or]

1-14                 (3)  information obtained from a source not involved in

1-15     the preparation of the environmental or health and safety audit

1-16     report; or

1-17                 (4)  material or information contained in the audit

1-18     report that cannot be reproduced through any independent means, if

1-19     a government official charged with the enforcement of an

1-20     environmental or health and safety law demonstrates a compelling

1-21     need for the information to protect human health or the

1-22     environment.

1-23           SECTION 2.  Section 10, Texas Environmental, Health, and

1-24     Safety Audit Privilege Act (Article 4447cc, Vernon's Texas Civil

 2-1     Statutes), is amended by amending Subsections (a), (d), and (f) and

 2-2     adding Subsection (j) to read as follows:

 2-3           (a)  Except as provided by this section, a person who makes a

 2-4     voluntary disclosure of a violation of an environmental or health

 2-5     and safety law is immune from an administrative or[,] civil[, or

 2-6     criminal] penalty for the violation disclosed.

 2-7           (d)  The immunity established by Subsection (a) of this

 2-8     section does not apply and an administrative or[,] civil[, or

 2-9     criminal] penalty may be imposed under applicable law if:

2-10                 (1)  the person who made the disclosure intentionally

2-11     or knowingly committed or was responsible within the meaning of

2-12     Section 7.02, Penal Code, for the commission of the disclosed

2-13     violation;

2-14                 (2)  the person who made the disclosure recklessly

2-15     committed or was responsible within the meaning of Section 7.02,

2-16     Penal Code, for the commission of the disclosed violation and the

2-17     violation resulted in substantial injury to one or more persons at

2-18     the site or off-site harm to persons, property, or the environment;

2-19                 (3)  the offense was committed intentionally or

2-20     knowingly by a member of the person's management or an agent of the

2-21     person and the person's policies or lack of prevention systems

2-22     contributed materially to the occurrence of the violation;  or

2-23                 (4)  the offense was committed recklessly by a member

2-24     of the person's management or an agent of the person, the person's

2-25     policies or lack of prevention systems contributed materially to

2-26     the occurrence of the violation, and the violation resulted in

2-27     substantial injury to one or more persons at the site or off-site

 3-1     harm to persons, property, or the environment.

 3-2           (f)  In a civil or[,] administrative[, or criminal]

 3-3     enforcement action brought against a person for a violation for

 3-4     which the person claims to have made a voluntary disclosure, the

 3-5     person claiming the immunity has the burden of establishing a prima

 3-6     facie case that the disclosure was voluntary.  After the person

 3-7     claiming the immunity establishes a prima facie case of voluntary

 3-8     disclosure, other than a case in which under Subsection (d) of this

 3-9     section immunity does not apply, the enforcement authority has the

3-10     burden of rebutting the presumption by a preponderance of the

3-11     evidence or, in a criminal case, by proof beyond a reasonable

3-12     doubt.

3-13           (j)  Notwithstanding any provision of this Act regarding the

3-14     elimination of a penalty, a penalty may be assessed for a violation

3-15     that has been voluntarily disclosed if the regulatory agency with

3-16     jurisdiction over the disclosed violation, the governor, and the

3-17     attorney general unanimously agree that the penalty should be

3-18     assessed.

3-19           SECTION 3.  This Act takes effect September 1, 1997, and

3-20     applies only to an environmental or health and safety audit

3-21     prepared on or after that date.

3-22           SECTION 4.  The importance of this legislation and the

3-23     crowded condition of the calendars in both houses create an

3-24     emergency and an imperative public necessity that the

3-25     constitutional rule requiring bills to be read on three several

3-26     days in each house be suspended, and this rule is hereby suspended.