2377-S [atlas:bill]

AN ACT Relating to promoting compliance with environmental laws; and adding a new chapter to Title 34 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The purpose of this chapter is to enhance protection of human health and the environment by encouraging regulated entities to achieve and maintain compliance with environmental laws through voluntary measures to review compliance, report and remedy any violations that may be identified, and take measures to prevent future violations.

NEW SECTION. Sec. 2. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Agency" means: The department of ecology; all independent air pollution control authorities created pursuant to RCW 70.94.053; all cities, counties, and municipal corporations granted authority to issue permits pursuant to RCW 90.48.165; and jurisdictional health departments granted authority to issue biosolids permits pursuant to chapter 70.95J RCW.

(2) "Compliance assurance review" means an evaluation, review, or assessment of compliance with, or of potential liability arising from, environmental laws conducted by, or under the direction or with the consent of, an owner or operator of all or some portion of a facility, regulated activity, or site. The review may include, but is not limited to, an environmental compliance audit, management system audit, contamination or remedial action assessment, evaluation based on private sector national or international management or operational standards, or self-evaluation, or the day-to-day implementation of an environmental compliance assurance program.

(3) "Compliance assurance program" means a systematic process or program utilized at or with regard to a regulated facility or operation achieving, maintaining, or determining the status of compliance with environmental laws. Included are activities conducted under environmental compliance policies or procedures established by or for the regulated facility or operation and any established channels of employee reporting or disclosure.

(4) "Court" refers to a court of the state of Washington and to an administrative board or agency before which disputed matters may be adjudicated, including an environmental hearings board established under RCW 43.21B.010, 76.09.210, 90.58.170, and 75.20.130.

(5) "Data" means objective physical observations or measurements.

(6) "Environmental law" means a law relating to environmental protection administered by the department of ecology including federal and state statutes and regulations and municipal or other local environmental ordinances related to their authority under RCW 70.94.053 and 90.48.165 and chapter 70.95J RCW regulation.

(7) "Document" means any form of record, to the full extent described by superior court civil rule 34.

(8) "Penalty" means an administrative or civil sanction imposed to punish a person for a violation of an environmental law, including an agency action to restrict a person from providing or receiving goods, materials, services, grants, or other benefits. "Penalty" does not mean a technical or remedial provision ordered by an agency.

(9) "Regulated entity" means any form of legal entity regulated under environmental law, including a trust, association, partnership, or sole proprietorship.

NEW SECTION. Sec. 3. (1) All data and other factual findings collected during the course of a voluntary compliance assurance review or program, including data and factual findings related to a violation of any environmental law, shall be admissible in any civil, criminal, or administrative proceeding. However, any analysis, interpretation, or recommendations regarding violations discovered during a voluntary compliance assurance review or program shall not be admissible in any civil or administrative proceeding. Further, any such analysis, interpretation, or recommendations shall be admissible if the analysis or recommendations are commingled with data and other factual findings such that the two cannot reasonably be separated for purposes of admissibility.

(2) The exclusion of evidence described in this section does not apply to:

(a) Data or other information collected or prepared to comply with a legally mandated monitoring or sampling requirement prescribed by statute, regulation, permit, judicial, or administrative order or consent decree; and

(b) Data or other information obtained by observation, sampling, or monitoring by an agency.

(3) Notwithstanding subsection (1) of this section, any analysis, interpretation, or recommendations regarding violations of environmental laws during a voluntary compliance assurance review or program may be admitted in a civil or administrative proceeding:

(a) To prove misuse by a regulated entity of the evidentiary exclusion provided by this section;

(b) To prove an effort to obstruct a civil or criminal investigation or enforcement action; or

(4) Notwithstanding subsection (1) of this section, any analysis, interpretation or recommendations regarding violations discovered during the course of a voluntary compliance assurance review or program, may be offered in evidence by or with the consent of the regulated entity that is the owner or operator of a facility at which a violation of an environmental law is alleged.

NEW SECTION. Sec. 4. (1) If a regulated entity meets the conditions of section 5 of this act, with respect to a violation of an environmental law, that regulated entity shall not be subject to administrative or civil penalties issued by an agency for the violation disclosed.

(2)(a) If a regulated entity meets the conditions of section 5 of this act, with respect to a violation of an environmental law, an agency may not recommend that a criminal charge be brought against the regulated entity, unless the violation demonstrates or involves:

(i) A management policy or practice that concealed or condoned a violation of environmental law; or

(ii) A high-level official's or manager's conscious involvement in or willful indifference to the violation.

(b) Whether or not an agency recommends that criminal charges be brought against a regulated entity, an agency may recommend criminal prosecution with respect to the criminal acts of individual managers or employees.

(3)(a) A regulated entity may qualify for additional incentives by implementing a compliance assurance program that is consistent with recognized national or international standards and includes provisions for pollution prevention and reduction.

(b) If a regulated entity has implemented a compliance assurance program under (a) of this subsection and achieved some measurable pollution prevention or reduction, an agency may reduce monitoring or reporting requirements to which the regulated entity is otherwise subject.

NEW SECTION. Sec. 5. A regulated entity shall satisfy each of the following conditions:

(1) The regulated entity shall disclose the violation in writing to the responsible agency within a reasonable time after identifying the violation;

(2) The disclosure must result from a voluntary compliance assurance review or the operation of a compliance assurance program, and not through a legally mandated monitoring or sampling requirement prescribed by statute, regulation, permit, order, decree, or notice of correction;

(3) The violation must be identified and disclosed before:

(a) The commencement of federal, state, or local agency inspection or investigation or the issuance of a request for information that would likely identify the violation;

(b) Notice of a citizen suit with respect to the violation;

(d) Disclosure of the violation by a person other than a representative of the regulated entity;

(4) The regulated entity shall achieve compliance as soon as possible, not to exceed sixty days after the violation is discovered. If an agency and the regulated entity agree that more than sixty days will be needed to come into compliance, the regulated entity and the agency shall enter into an agreement including a schedule for compliance;

(5) The regulated entity describes the steps taken, or to be taken, to prevent reoccurrence of the violation disclosed;

(6) The regulated entity cooperates with the agency in connection with an investigation of the issues identified in the disclosure;

(7) The violation is not one that:

(a) Resulted in serious actual harm to human health or the environment, or presents a substantial endangerment to human health or the environment; or

(b) Is a violation of the specific terms of a permit, settlement agreement, notice of correction, order, or decree; and

(8) The violation is not part of a pattern of similar violations at the facility, or among facilities owned or operated by the regulated entity, that evidence disregard for environmental laws.

NEW SECTION. Sec. 6. Nothing in this chapter shall limit, waive, or abrogate the scope or nature of a statutory or common law privilege, including without limitation the attorney-client privilege and the work product doctrine.

NEW SECTION. Sec. 7. Nothing in this chapter alters the obligation of any regulated entity to report and correct releases, violations, or other matters that are required to be reported by local, state, or federal law, rule, permit, or enforcement action.

NEW SECTION. Sec. 8. Sections 1 through 7 of this act shall constitute a new chapter in Title 34 RCW.