1.An owner or operator is eligible for immunity under this section from the time
the department receives official notification from the owner or operator of a scheduled
environmental audit. An owner or operator is immune from any administrative or civil
penalty associated with the information disclosed if the owner or operator makes a prompt
voluntary disclosure to the department regarding an environmental violation which is
discovered through the environmental audit. The owner or operator creates a rebuttable
presumption that the disclosure is voluntary by meeting the criteria provided in subsection
2 at the time of disclosure. To rebut the presumption that a disclosure is voluntary, the
department or other party has the burden of proving that the disclosure was not voluntary.
Immunity i
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1. An owner or operator is eligible for immunity under this section from the time
the department receives official notification from the owner or operator of a scheduled
environmental audit. An owner or operator is immune from any administrative or civil
penalty associated with the information disclosed if the owner or operator makes a prompt
voluntary disclosure to the department regarding an environmental violation which is
discovered through the environmental audit. The owner or operator creates a rebuttable
presumption that the disclosure is voluntary by meeting the criteria provided in subsection
2 at the time of disclosure. To rebut the presumption that a disclosure is voluntary, the
department or other party has the burden of proving that the disclosure was not voluntary.
Immunity is not provided if the violations of state or federal environmental law, rule, or
permit condition are intentional or if the violations of state or federal law, rule, or permit
condition resulted in substantial actual injury or imminent and substantial risk of injury to
persons, property, or the environment.
2. The disclosure of information is voluntary if all of the following circumstances exist:
a. The disclosure arises out of an environmental audit and relates to privileged
information as provided in section 455K.3.
b. The person making the disclosure uses reasonable efforts to pursue compliance and
to correct the noncompliance within a reasonable period of time after completion of the
environmental audit in accordance with a remediation schedule submitted to and approved
by the department. If evidence shows that the noncompliance is due to the failure to obtain
a permit, reasonable effort may be demonstrated by the submittal of a complete permit
application within a reasonable time. Disclosure of information required to be reported by
state or federal law, rule, or permit condition is not considered to be voluntary disclosure
and the immunity provisions in this section are not applicable.
5 ENVIRONMENTAL AUDIT PRIVILEGE AND IMMUNITY, §455K.9
c. Environmental violations are identified in an environmental audit report and disclosed
to the department before there is notice of a citizen suit or a legal complaint by a third party.
d. Environmental violations are identified in an environmental audit report and disclosed
to the department before the environmental violations are reported by any person not
involved in conducting the environmental audit or to whom the environmental audit report
was disclosed.
3. Ifanowneroroperatorhasnotprovidedthedepartmentwithnotificationofascheduled
environmental audit prior to performing the audit, a disclosure of information is voluntary if
the environmental violations are identified in an environmental audit report and disclosed by
certifiedmailtotheproperregulatoryagencythathasjurisdictionoverthedisclosedviolation
prior to the agency’s commencement of an investigation.
4. If a person is required to make a disclosure relating to a specific issue under a specific
permit condition or under an order issued by the department, the disclosure is not voluntary
with respect to that issue.
5. Except as provided in this section, this section does not impair the authority of the
properregulatoryagencytorequireatechnicalorremedialactionortoorderinjunctiverelief.
6. Upon application to the department, the time period within which the disclosed
violation is corrected under subsection 2 may be extended if it is not practical to correct the
noncompliance within the reasonable period of time initially approved by the department.
The department shall not unreasonably withhold the grant of an extension. If the department
denies an extension, the department shall provide the requesting party with a written
explanation of the reasons for the denial. A request for de novo review of the department’s
decision may be made to the appropriate court.
7. Immunity provided under this section from administrative or civil penalties does not
apply under any of the following circumstances:
a. If an owner or operator of the facility or operation has been found in a civil or
administrative proceeding to have committed serious violations in this state that constitute
a pattern of continuous or repeated violations of environmental laws, administrative rules,
and permit conditions and that were due to separate and distinct events giving rise to the
violations within the three-year period prior to the date of disclosure, or if under section
459.604 an owner or operator of a facility or operation is classified as a habitual violator.
b. If a violation of an environmental law, administrative rule, permit condition, settlement
agreement, or order on consent, final order, or judicial order results in a substantial economic
benefit which gives the violator a clear advantage over its business competitors.
8. In cases where the conditions of a voluntary disclosure are not met but a good faith
effort was made to voluntarily disclose and resolve a violation detected in an environmental
audit, the state regulatory authorities shall consider the nature and extent of any good faith
effort in deciding the appropriate enforcement response and shall consider reducing any
administrative or civil penalties based on mitigating factors showing that one or more of the
conditions for voluntary disclosure have been met.
9. The immunity provided by this section does not abrogate the responsibility of a person
as provided by applicable law to report a violation, to correct the violation, conduct necessary
remediation, or respond to third-party actions. This chapter shall not be construed to confer
immunity from liability in any private civil action except those actions brought pursuant to
section 455B.111.
10. Information required by rule to be submitted to the department as part of a disclosure
made pursuant to this section is not privileged information.