By Brown S.B. No. 1585
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.