BP BHEAD INT H

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 a division of state or local government responsible for the enforcement of or compliance with environmental laws, other than a local prosecutor.

(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," which must be construed broadly to fully implement the purposes of this chapter, means a law relating to environmental protection including, but not limited to: A federal and state statute; a municipal or other local environmental ordinance; a regulation, rule, or other form of requirement having the force of law implementing a requirement of an environmental statute or ordinance; and the terms and conditions of a permit, order, or schedule of compliance.

(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, sole proprietorship, and governmental agencies and facilities.

NEW SECTION. Sec. 3. (1) Except as provided in subsections (2), (3), and (4) of this section, information developed in the course of a voluntary compliance assurance review, and documents prepared as a part of or as a result of a voluntary compliance assurance review or program, are not admissible as evidence in a civil, criminal, or administrative proceeding.

(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;

(b) Information obtained by observation, sampling, or monitoring by an agency;

(c) Data and other factual findings collected during the course of a voluntary compliance assurance review, but this exclusion does not include an analysis, interpretation, or discussion of the data or factual findings; or

(d) Information and documents developed in the course of a voluntary compliance review or program if the owner or operator does not take reasonable steps to remedy a violation within a reasonable period of time after identifying it as a violation.

(3) Notwithstanding subsection (1) of this section, information developed in the course of a voluntary compliance review, and documents prepared as a part of or as a result of a voluntary compliance assurance review or program, may be admitted in a civil, criminal, or administrative proceeding:

(a) To prove fraud by the regulated entity; or

(b) To prove an effort to obstruct a criminal investigation or prosecution.

(4) Notwithstanding subsection (1) of this section, information developed in the course of a voluntary compliance review, and documents prepared as a part of or as a result 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. If the evidence is offered by or with the consent of the owner or operator, other information or documents concerning the alleged violation may be offered in evidence by an opposing party for the following purposes:

(a) To prove feasibility of remedial measures;

(b) For impeachment; or

NEW SECTION. Sec. 4. (1) If a regulated entity discloses, in accordance with section 5 of this act, a violation of an environmental law, that regulated entity may not be subject to administrative or civil penalties for the violation disclosed.

(2) An agency may not request or use information developed in the course of a voluntary compliance assurance review, or a document prepared as a part of or as a result of a voluntary compliance assurance review or program, as a part of routine inspections or to initiate a civil or criminal investigation of the regulated entity.

(3)(a) An agency may not request or recommend that a criminal charge be brought against a regulated entity if section 5 of this act is satisfied, if the violation does not demonstrate or involve:

(i) A prevalent 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) Notwithstanding (a) of this subsection, an agency may recommend or request prosecution of individual managers or employees for a substantial or egregious violation. Factors that indicate a substantial or egregious violation include: (i) A history of repeated violations; (ii) deliberate violation of an environmental law; (iii) concealed misconduct or falsified records; (iv) tampering with monitoring or control equipment; and (v) purposely ignoring an environmental regulatory requirement.

(4)(a) A regulated entity may qualify for additional incentives by implementing a compliance assurance program that meets the requirements of American National Standards Institute, ISO (International Organization for Standardization)-14000, or other recognized standard 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, or judicial order or decree;

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

(a) The commencement of an agency inspection or investigation or the issuance of an agency request for information that would 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 within sixty days of identifying the violation. If more than sixty days will be needed, the regulated entity shall propose a reasonable schedule of 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 to which the disclosure is made 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 an imminent and substantial endangerment to human health or the environment; or

(b) Is a violation of the specific terms of a judicial order or decree; and

(8) The violation is not part of a pattern of 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. An agency may not adopt a rule or impose a condition that circumvents the purpose of this chapter.

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