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S. B. No. 372 As Passed by the HouseAs Passed by the House
127th General Assembly | Regular Session | 2007-2008 |
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Cosponsors:
Senators Schaffer, Harris, Lehner, Morano, Patton, Roberts, Sawyer, Seitz, Stivers, Turner, Wagoner
Representatives Aslanides, Bacon, Collier, Domenick, Grady, Stebelton, Wachtmann
A BILL
To amend sections 3745.71 and 3745.72 of the Revised
Code to extend from January 1, 2009, to January 1,
2014, the time by which environmental audits must
be completed in order to be within the scope of
certain privileges and immunities that apply to
such audits, and to declare an emergency.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 3745.71 and 3745.72 of the Revised
Code be amended to read as follows:
Sec. 3745.71. (A) Except as otherwise provided in division
(C) of this section, the owner or operator of a facility or
property who conducts
an environmental audit of one or more
activities at the facility or property
has a privilege with
respect to both of the following:
(1) The contents of an environmental audit report that is
based on the
audit;
(2) The contents of communications between the owner or
operator and
employees or contractors of the owner or operator, or
among employees or
contractors of the owner or operator, that are
necessary to the audit and are
made in good faith as part of the
audit after the employee or contractor is
notified that the
communication is part of the audit.
(B) Except as otherwise provided
in or ordered pursuant to
this section, information that is privileged under
this section is
not admissible as evidence or subject to discovery in any
civil or
administrative proceeding and a person who
possesses such
information as a result of conducting or participating in an
environmental
audit shall not be compelled to testify in any
civil
or administrative proceeding
concerning the privileged portions of
the environmental audit.
(C) The privilege provided in this section does not apply to
criminal investigations or proceedings. Where an audit report
is
obtained, reviewed, or used in a criminal proceeding, the
privilege provided in this section applicable to civil or
administrative proceedings is not waived or eliminated.
Furthermore, the
privilege provided in this section does not apply
to
particular information under any of the following
circumstances:
(1) The privilege is not asserted with respect to that
information by the
owner or operator to whom the privilege
belongs.
(2) The owner or operator to whom the privilege belongs
voluntarily
testifies, or has provided
written authorization to an
employee, contractor, or agent to testify on
behalf of the owner
or
operator, as to that information.
(3) A court of record in a civil proceeding or the
tribunal
or presiding officer in an administrative proceeding finds,
pursuant to this
section, that the privilege does not apply to
that information.
(4) The information is required by law to be collected,
developed,
maintained, reported, disclosed publicly, or otherwise
made
available to a government agency.
(5) The information is obtained from a source other than an
environmental
audit report, including, without limitation,
observation, sampling,
monitoring, a communication, a record, or a
report that is not part of the
audit on which the
audit report is
based.
(6) The information is collected, developed, made, or
maintained in bad
faith or for a fraudulent purpose.
(7) The owner or operator to whom the privilege belongs
waives the
privilege, in whole or in part, explicitly or by
engaging in conduct that
manifests a clear intent that the
information not be
privileged. If an owner or operator introduces
part of an environmental
audit report into evidence in a civil or
administrative
proceeding to prove that
the owner or operator did
not violate, or is no longer violating, any
environmental laws,
the privilege provided by this section is waived with
respect to
all information in the audit report that is relevant to that
issue.
(8)(a) The information shows evidence of noncompliance with
environmental laws and
the owner or operator fails to do any of
the
following:
(i) Promptly initiate
reasonable efforts to achieve
compliance
upon discovery of the noncompliance through an
environmental audit;
(ii) Pursue compliance with reasonable diligence;
(iii) Achieve compliance within a reasonable
time.
(b) "Reasonable diligence" includes,
without limitation,
compliance with section 3745.72 of the Revised Code.
(9) The information contains evidence that a government
agency
federally authorized, approved, or delegated to enforce
environmental laws
has reasonable cause to believe is necessary
to
prevent imminent and substantial endangerment or harm to
human
health or the environment.
(10) Any circumstance in which both of the following apply:
(a) The information contains evidence regarding an alleged
violation of environmental laws and a government agency charged
with
enforcing any of those laws has a substantial need for the
information to
protect public health or safety or to prevent
substantial
harm to property or the environment;.
(b) The government agency is unable to obtain the substantial
equivalent of the information by other means without unreasonable
delay or
expense.
(11) The information consists of personal
knowledge of an
individual who did not obtain that information as
part of an
environmental audit.
(12) The information is not clearly identified as part of an
environmental
audit report. For purposes of this section, clear
identification of
information as part of an environmental audit
report includes, without
limitation, either of the following:
(a) The information is contained in a document and the front
cover, the first page, or a comparable part of the document is
prominently labeled
with "environmental audit report: privileged
information" or substantially
comparable language;.
(b) The information is contained in an electronic record and
the
record is programmed to display or print prominently
"environmental audit
report: privileged information" or
substantially comparable language before
the privileged
information is displayed or printed.
(13) The information
existed prior to the initiation of the
environmental audit under
division (A) of section 3745.70
of the
Revised
Code.
(D) If the privilege provided in this section belongs to an
owner
or operator who is not an individual, the privilege may be
asserted or waived,
in whole or in part, on behalf of the owner or
operator only by an officer,
manager, partner, or other comparable
person who has a fiduciary relationship
with the owner or operator
and is authorized generally to act on behalf of the
owner or
operator or is a person who is authorized specifically to assert
or
waive the privilege.
(E) A person asserting the privilege provided in this section
has the burden of proving the applicability of the privilege by a
preponderance of the evidence. If a person seeking disclosure of
information
with respect to which a privilege is asserted under
this section shows
evidence of noncompliance with environmental
laws pursuant to
division (C)(8) of this section, the person
asserting the privilege
also has the burden of proving by a
preponderance of the evidence that
reasonable efforts to achieve
compliance with those laws were initiated
promptly and
that
compliance was pursued with reasonable diligence and achieved
within a reasonable time.
(F) When determining whether the privilege provided by this
section applies to particular information, a court of record that
is not
acting pursuant to division (G) of this section, or the
tribunal
or presiding officer in an administrative proceeding,
shall conduct an in
camera review of the information in a manner
consistent with applicable rules
of procedure.
(G)(1) The prosecuting attorney of a county or the attorney
general, having
probable cause to believe, based on information
obtained from a source
other than an environmental audit report,
that a violation has been
committed under environmental laws for
which a civil or administrative
action may be initiated, may
obtain information with respect to
which a privilege is asserted
under this section pursuant to a search warrant,
subpoena, or
discovery under the Rules of Civil
Procedure. The prosecuting
attorney or the attorney general
immediately shall place the
information under seal and shall not review or disclose its
contents.
(2) Not later than sixty days after receiving an
environmental audit report under division
(G)(1) of this section,
the
prosecuting attorney or the attorney general may file with the
court of common pleas of a county in which
there is proper venue
to bring a civil or administrative
action pertaining to the
alleged violation a petition
requesting an in camera hearing to
determine if the information described in
division (G)(1) of this
section is subject to disclosure under this
section. Failure to
file such a petition shall cause the information to be
released to
the owner or operator to whom it belongs.
(3) Upon the filing of a petition under division
(G)(2) of
this section, the
court shall issue an order scheduling an in
camera hearing, not
later than forty-five days after the filing of
the petition, to
determine if any or all of the
information
described in division (G)(1) of this section is subject
to
disclosure under this section.
The order shall allow the
prosecuting attorney or the
attorney general to remove the seal
from the report in order to
review it and shall place appropriate
limitations on
distribution and review of the report to protect
against
unnecessary disclosure.
(4) The prosecuting attorney or the attorney general may
consult with government agencies regarding the contents of the
report to prepare for the in camera hearing.
Information
described in division (G)(1) of this section that is used
by the
prosecuting attorney or the attorney general to prepare for the in
camera hearing shall not be used by the prosecuting attorney, the
attorney
general,
an employee or agent of either of them, or an
agency described in division
(G)(4) of this section in any
investigation or proceeding against the
respondent, and otherwise
shall be kept confidential, unless the information
is subject to
disclosure under this section.
(5) The parties may stipulate that information contained in
an
environmental audit report is or is not subject to disclosure
under this
section.
(6) If the court determines that
information described in
division (G)(1) of this section is
subject to disclosure under
this section, the court shall compel disclosure
under this section
of only the information that is relevant to the proceeding
described in division (G)(1) of this section.
(H) Nothing in this section
affects the nature, scope, or
application of any privilege of
confidentiality or nondisclosure
recognized under another section of the Revised Code or the
common
law of this state, including, without limitation, the work product
doctrine and attorney-client privilege.
(I) The privilege provided by this section applies only to
information and communications that are part of environmental
audits
initiated after March 13, 1997, and completed
before
January 1, 2009 2014, in accordance with the time
frames specified
in division (A) of section 3745.70 of the
Revised Code.
Sec. 3745.72. (A) The owner or operator of a facility or
property who conducts an environmental audit of the facility or
property and
promptly and voluntarily discloses information
contained in or derived from an
audit report that is based on the
audit and
concerns an alleged violation of environmental laws to
the director of the
state agency that has jurisdiction over the
alleged violation is immune from
any administrative and
civil
penalties for the specific violation
disclosed, except that where
the disclosed violation has
resulted in significant economic
benefit to the owner or operator of the
facility or property,
there is no immunity
for the economic benefit component of the
administrative and
civil penalties for that violation.
An owner
or operator asserting entitlement
to such immunity has the burden
of proving that entitlement by a preponderance
of the evidence.
(B) For the purposes of this section, a disclosure of
information
is voluntary with respect to an alleged violation of
environmental laws only
if all of the following apply:
(1) The disclosure is made promptly after the
information is
obtained through the environmental audit by the owner or
operator
who conducts the environmental audit;.
(2) A reasonable, good faith effort is made to
achieve
compliance as quickly as practicable with environmental laws
applicable to the information disclosed;.
(3) Compliance with environmental laws applicable to the
information
disclosed is achieved as quickly as practicable or
within such period as is
reasonably ordered by the director of the
state agency that has jurisdiction
over the alleged violation;.
(4) The owner or operator cooperates with
the director of the
state agency that has jurisdiction over the alleged
violation in
investigating the cause, nature, extent, and effects of the
noncompliance;.
(5) The disclosure is not required by law, prior litigation,
or an order
by a court or a government agency;.
(6) The owner or operator who makes the disclosure does not
know or have
reason to know that a government agency charged with
enforcing environmental
laws has commenced an investigation or
enforcement action that
concerns a violation of such laws
involving the activity.
(C) For the purposes of this section, a disclosure shall be
in
writing, dated, and hand delivered or sent by certified mail to
the director
of the state agency that has jurisdiction over the
alleged violation, and
shall contain all of the
following in a
printed letter attached to the front of the disclosure:
(1) The name, address, and telephone number of the owner or
operator making the disclosure;
(2) The name, title, address, and telephone number of one or
more persons associated with the owner or operator who may be
contacted
regarding the disclosure;
(3) A brief summary of the alleged violation of environmental
laws, including, without limitation, the nature, date, and
location of
the
alleged violation to the extent that the
information is known by the owner or
operator;
(4) A statement that the information is part of an
environmental audit report and is being disclosed under section
3745.72 of the
Revised Code
in order to obtain the immunity
provided by that section.
(D) This section does not provide immunity from the payment
of
damages for harm to persons, property, or the environment; the
payment of
reasonable costs incurred by a government agency in
responding to a
disclosure;
or responsibility for the remediation
or cleanup of
environmental harm under environmental laws.
(E) The immunity provided by this section
does not apply
under any of the following circumstances:
(1) Within the three-year period prior to disclosure,
the
owner or operator of a facility or property has committed
significant violations that constitute a pattern of continuous
or
repeated violations of environmental laws, environmental related
settlement
agreements, or environmental related judicial orders
and that arose from
separate and
distinct events. For the purposes
of division
(E)(1) of this section, a
pattern of continuous or
repeated violations also may be
demonstrated by multiple
settlement agreements related to
substantially the same alleged
significant violations that
occurred within the three-year period
immediately prior to the
voluntary disclosure. Determination of
whether a person has a
pattern of continuous or repeated
violations under division
(E)(1) of this section shall be
based on
the compliance history of the property or specific
facility at
issue.
(2) With respect to a specific violation, the
violation
resulted in serious harm or in imminent and
substantial
endangerment to human health or the
environment.
(3) With respect to a specific violation, the
violation is of
a specific requirement of an administrative or
judicial order.
(F) The immunity provided by this section applies only to
disclosures made
concerning environmental audits initiated after
March 13, 1997, and completed before January 1,
2009 2014, in
accordance with the time
frames specified in division (A) of
section 3745.70 of the Revised
Code.
(G) The immunity provided by this section applies to a person
who makes a good faith disclosure to a state agency under this
section even
though another state agency is determined to have
jurisdiction over an alleged
violation of environmental laws
indicated in the disclosure.
(H) Each state agency that receives a
disclosure under this
section promptly shall record receipt of the disclosure,
determine
whether it has jurisdiction over the alleged violation of
environmental laws indicated in the disclosure, and, if it does
not have such
jurisdiction, deliver the disclosure documents to
the director of a state
agency that has jurisdiction over the
alleged violation. If a disclosure
indicates alleged violations of
environmental laws that are under the
jurisdiction of more than
one state agency, the state agency that first
receives the
disclosure and has jurisdiction over any of the alleged
violations
promptly shall notify the director of each state agency that has
jurisdiction over any of such alleged violations. The director of
each state
agency that receives a disclosure under this section,
or is notified by
another state agency that the director's agency
has jurisdiction over an
alleged violation of environmental laws
indicated in the disclosure, promptly
shall deliver written
notice
of that fact by certified mail to the owner or operator who made
the
disclosure. The notice shall identify the state agency that
sends the notice;
state the name, title, address, and telephone
number of a person in the agency
whom the owner or operator may
contact regarding the
disclosure; and state the
name, address, and
telephone number of the director of any other state agency
notified about the disclosure because that agency has jurisdiction
over an
alleged violation of environmental laws indicated in the
disclosure.
Section 2. That existing sections 3745.71 and 3745.72 of the
Revised Code are hereby repealed.
Section 3. This act is hereby declared to be an emergency
measure necessary for the immediate preservation of the public
peace, health, and safety. The reason for such necessity is that
the deadline by which environmental audits must be completed in
order to be within the scope of certain privileges and immunities
currently is January 1, 2009, thus necessitating the immediate
extension of that deadline in order to continue the environmental
audit program. Therefore, this act shall go into immediate effect.
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