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(3) `Environmental audit report' means a document marked or identified as such with a completion date existing either individually or as a compilation prepared in connection with an environmental audit. An environmental audit report may include, but is not limited to, field notes and records of observations, findings, opinions, suggestions, recommendations, conclusions, drafts, memoranda, drawings, photographs, computer-generated or electronically-recorded information, maps, charts, graphs, and surveys, provided the supporting information is collected or developed for the primary purpose and in the course of an environmental audit. An environmental audit report, when completed, may have these components:

(a) an audit report prepared by an auditor, which may include the scope and date of the audit and the information gained in the audit, together with exhibits and appendices and may include conclusions and recommendations;

(b) memoranda and documents analyzing the report and discussing implementation issues;

(c) an audit implementation plan that addresses correcting past noncompliance, improving current compliance, and preventing future noncompliance.

(4) `Environmental laws' means all provisions of federal, state, regional, and local laws, regulations, and ordinances pertaining to environmental matters.

Section 48-57-30. (A) An environmental audit report or any part of an environmental audit report is privileged and, therefore, immune from discovery and is not admissible as evidence in a legal action, except as

(1) information obtained by observation by a regulatory agency;

(2) information obtained from a source independent of the environmental audit;

(3) information obtained pursuant to specific permit conditions that require monitoring or sampling records and reports or assessment plans and management plans required to be maintained or submitted to the department pursuant to an established schedule or pursuant to specific permit conditions, final departmental orders, or environmental laws that require notification of releases to the environment;

(4) documents prepared either prior to the beginning of the environmental audit or subsequent to the completion date of the audit report, and in all cases, any documents prepared independent of the audit or audit report;

(5) documents prepared as a result of multiple or continuous self auditing conducted in an effort to intentionally avoid liability for violations; or

(6) information which is knowingly misrepresented or misstated or which is knowingly deleted or withheld from an environmental audit report, whether or not included in a subsequent environmental audit report.

(B) If an environmental audit report or any part of an environmental audit report is subject to the privilege provided for in subsection (A), no person who conducted or participated in the audit or who significantly reviewed the audit report may be compelled to testify regarding the audit report or a privileged part of the audit report except as provided for in Sections 48-57-40, 48-57-50, and 48-57-60.

(C) Nothing contained in this chapter may restrict a party in a proceeding before the South Carolina Workers' Compensation Commission from obtaining or discovering any evidence necessary or appropriate for the proof of any issue pending in the case, regardless of whether evidence is privileged pursuant to this chapter. Further, nothing contained in this chapter may prevent the admissibility of evidence which is otherwise relevant and admissible in a proceeding before the South Carolina Workers' Compensation Commission, regardless of whether the evidence is privileged pursuant to this chapter. However, the commission, upon motion made by a party to the proceeding, may issue appropriate protective orders preventing disclosure of information outside of the workers' compensation proceeding.

Section 48-57-40. (A) The privilege provided for in Section 48-57-30 does not apply to the extent that it is expressly waived in writing by the owner or operator of a facility at which an environmental audit was conducted and who prepared or caused to be prepared the audit report as a result of the audit.

(B) The audit report and information generated by the audit may be disclosed without waiving the privilege in Section 48-57-30 to:

(1) a person employed by the owner or operator or the parent corporation of the audited facility;

(2) a legal representative of the owner or operator or parent corporation; or

(3) an independent contractor retained by the owner or operator or parent corporation to conduct an audit on or to address an issue or issues raised by the audit.

(C) Disclosure of an audit report or information generated by the audit under these circumstances does not waive the privilege in Section 48-57-30:

(1) disclosure made under the terms of a confidentiality agreement between the owner or operator of the facility audited and a potential purchaser of the business or facility audited;

(2) disclosure made under the terms of a confidentiality agreement between governmental officials and the owner or operator of the facility audited;

(3) disclosure made under the terms of a confidentiality agreement between a customer, lending institution, or insurance company with an existing or proposed relationship with the facility.

Section 48-57-50. In an administrative proceeding before an Administrative Law Judge, the department may seek by motion a declaratory ruling on the issue of whether an environmental audit report is privileged. The Administrative Law Judge may revoke the privilege granted in Section 48-57-30 to an audit report if the factors set forth in this section apply. In a civil proceeding, the court, after an in-camera review, may revoke the privilege provided for in Section 48-57-30 if the court determines that disclosure of the environmental audit report was sought after the effective date of this chapter, and:

(1) the privilege is asserted for purposes of deception or evasion; or

(2) even if subject to the privilege provided for in Section 48-57-30:

(a) the material shows evidence of significant noncompliance with applicable environmental laws.

(b) the owner or operator of the facility has not promptly initiated and pursued with diligence appropriate action to achieve compliance with these environmental laws or has not made reasonable efforts to complete any necessary permit application; and

(c) as a result, the owner or operator of the facility did not or will not achieve compliance with applicable environmental laws or did not or will not complete the necessary permit application within a reasonable period of time.

Section 48-57-60. In a criminal proceeding the court, after an in camera review, may revoke the privilege provided for in Section 48-57-30 if the court determines that disclosure of the environmental audit report was sought after the effective date of this act, and:

(1) the privilege is asserted for purposes of deception or evasion; or

(2) even if subject to the privilege provided for in Section 48-57-30;

(a) the material shows evidence of wilful noncompliance with applicable environmental laws;

(b) the owner or operator of the facility has not promptly initiated and pursued with diligence appropriate action to achieve compliance with these environmental laws or has not made reasonable efforts to complete any necessary permit application; and

(c) as a result, the owner or operator of the facility did not or will not achieve compliance with applicable environmental laws or did not

Section 48-57-70. A party asserting the privilege provided for in Section 48-57-30 has the burden of proving that the materials claimed as privileged constitute an environmental audit report as defined by Section 48-57-20 and of proving diligence toward compliance. A party seeking disclosure under Section 48-57-50 has the burden of proving the condition for disclosure set forth in that section. A solicitor or the Attorney General seeking disclosure under Section 48-57-60 has the burden of proving the conditions for disclosure set forth in that section.

Section 48-57-80. The parties may at any time stipulate to entry of an order directing that specific information contained in an environmental audit report is or is not subject to the privilege. In the absence of an on-going proceeding, where the parties are not in agreement, the department may seek a declaratory ruling from the circuit court on the issue of whether the materials are privileged under Section 48-57-30 and whether the privilege, if existing, should be revoked pursuant to Section 48-57-50 or Section 48-57-60.

Section 48-57-90. Nothing in this chapter limits, waives, or abrogates the scope or nature of any statutory or common law privilege, including the work-product privilege or the attorney-client privilege.

Section 48-57-100. (A) If a person or entity makes a voluntary disclosure of an environmental compliance violation of the state's laws, or the federal, regional, or local counterpart or extension of these laws, there is a rebuttable presumption that the disclosure is voluntary, and the person or entity is immune from any administrative or civil penalties associated with the issues disclosed. Nothing in this section shall be construed to provide immunity from criminal penalties.

(B) For purposes of this section, disclosure is voluntary if:

(1) the disclosure is made within fourteen days following a reasonable investigation;

(2) the disclosure is made to an agency having regulatory authority with regard to the violation disclosed;

(3) the person or entity making the disclosure initiates an action to resolve the violation identified in the disclosure in a diligent manner;

(4) the person or entity making the disclosure cooperates with the appropriate agency in connection with investigation of the issues identified in the disclosure; and

(5) the person or entity making the disclosure diligently pursues compliance.

(C) A disclosure is not voluntary for purposes of this section if:

(2) specific permit conditions, final departmental orders, or environmental laws require notification of releases to the environment;

(3) the violation was committed intentionally and wilfully by the person or entity making the disclosure;

(4) the violation was not corrected in a diligent manner;

(5) significant environmental harm or a public health threat was caused by the violation; or

(6) the violation occurred within one year of a similar prior violation at the same facility and immunity from civil and administrative penalties was granted by the department for the prior violation.

(D) To rebut the presumption that a disclosure is voluntary, the governmental entity shall show to the satisfaction of the court or the Administrative Law Judge presiding over the enforcement action that the disclosure was not voluntary, based upon the factors set forth in this section. No state or local governmental agency may include an administrative or civil penalty or fine for acts in a notice of violation or in a cease and desist order based upon an environmental compliance violation immune from penalties under this section, absent a finding by the court that the state or local governmental agency has rebutted the presumption of voluntariness of the disclosure.

(E) A voluntary disclosure made pursuant to this section is subject to disclosure by the agency pursuant to the South Carolina Freedom of Information Act.

(F) Final waiver of penalties and fines is not granted until full compliance has been certified by the department as occurring in a reasonable time. If full compliance is not certified by the department, the department shall retain discretion to assess penalties based on the department's Uniform Enforcement Policy.

Section 48-57-110. No state or local governmental rule, regulation, guidance, policy, or permit condition may circumvent or limit the privileges established by this chapter or the exercise of the privileges or the presumption and immunity established by this chapter."

SECTION 3. This act takes effect upon approval by the Governor. The audit report privilege contained within this chapter does not apply to any administrative, civil, or criminal proceedings pending or any violations which were known or discovered by the owner or operator before the effective date of this act./

Amend title to conform.

The question then was the third reading of the Bill.

There being no further amendments, the Bill was read the third time, passed and ordered returned to the House of Representatives with amendments.

Senators PASSAILAIGUE, COURSON and CORK desired to be recorded as voting against the third reading of the Bill.

I wish to be recorded as voting "no" on the bill because it is not perfected. There is still insufficient reason demonstrated by proponents that there is any need to do this. DHEC has been made a second class citizen in the regulation of industry regarding protecting the environment.

H. 4444 -- Rep. Sharpe: A BILL TO AMEND SECTIONS 38-43-105 AND 38-43-106, BOTH AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO EDUCATION AND CONTINUING EDUCATION REQUIREMENTS FOR INSURANCE AGENTS, SO AS TO EXEMPT FROM THESE REQUIREMENTS AGENTS WHO SELL PRE-PAID LEGAL INSURANCE.

On motion of Senator COURSON, with unanimous consent, the Minority Report was withdrawn from the Bill.

Having received a favorable report from the Charleston County Delegation, the following appointment was confirmed in open session:

Reappointment, Charleston County Magistrate, with term to commence April 30, 1995, and to expire April 30, 1999:

Honorable James A. Turner, 13 Sheridan Road, Charleston, S.C. 29407

Reappointment, Horry County Board of Voter Registration, with term to commence March 15, 1996, and to expire March 15, 1998:

Mr. Matthew S. Rhue, 1207 Granger Road, Conway, S.C. 29527

Having received a favorable report from the Clarendon County Delegation, the following appointment was confirmed in open session:

Initial Appointment, Clarendon County Magistrate, with term to commence April 30, 1994, and to expire April 30, 1998:

Honorable William T. Geddings, Sr., Route 7, Box 12, Manning, S.C. 29102 VICE Edward M. Stuckey (resigned)

Having received a favorable report from the Lancaster County Delegation, the following appointment was confirmed in open session:

Initial Appointment, Lancaster County Magistrate, with term to commence April 30, 1994, and to expire April 30, 1998:

Mr. William Van Hegler, 2501 Robert H. Kirk Road, Lancaster, S.C. 29720 VICE Lee R. Deese (resigned)

Having received a favorable report from the Laurens County Delegation, the following appointment was confirmed in open session:

Reappointment, Laurens County Magistrate, with term to commence April 30, 1995, and to expire April 30, 1999:

Honorable James A. Davis, Post Office Box 925, Laurens, S.C. 29360

On motion of Senator PASSAILAIGUE, with unanimous consent, the Senate stood adjourned out of respect to the memory of Mr. James Lee Jefferson, Jr. of Charleston, S.C.

At 7:09 P.M., on motion of Senator BRYAN, the Senate adjourned to meet tomorrow at 11:00 A.M.

Indicates Matter Stricken
Indicates New Matter

The Senate assembled at 11:00 A.M., the hour to which it stood adjourned and was called to order by the PRESIDENT.

A quorum being present the proceedings were opened with a devotion by the Chaplain as follows:

Beloved, the first of the 4 petitions in the Lord's Prayer for mankind's good is for our economic welfare. Listen, Matthew 4:11:

"Give us this day our daily bread."
Let us pray.

Almighty and ever-present Lord, we often maximize our wants, and give chief place in our lives to economic values.

Help us also, lest we be less than honest, to know that our social and economic welfare are, indeed, worthy objects of our prayers.

Help us to realize that Your good will for us involves the proper use and full enjoyment of the things of this world as stewards of Your favor.

May we not miss the fact that the prerequisite for such enjoyment is to first give to our God both REVERENCE and SUBMISSION.

So, as we pray for daily bread, may we pray that we may hallow Your Name, do Your Will, and seek to bring in Your Kingdom, through Christ our Lord.

Amen.

At 11:08 A.M., on motion of Senator COURTNEY, the Senate receded from business not to exceed fifteen minutes.

At 11:20 A.M., the Senate resumed.

The PRESIDENT called for Petitions, Memorials, Presentments of Grand Juries and such like papers.

July 20, 1995
Mr. President and Members of the Senate:

I am transmitting herewith an appointment for confirmation. This appointment is made with the "advice and consent of the Senate," and is, therefore, submitted for your consideration.

Respectfully,
David M. Beasley

Reappointment, State Athletic Commission, with term to commence June 30, 1996, and to expire June 30, 2000:

6th Congressional District:

Mr. Luther A. Bradley, Route 4, Box 54-B, Hemingway, S.C. 29554

Referred to the General Committee.

July 21, 1995
Mr. President and Members of the Senate:

I am transmitting herewith an appointment for confirmation. This appointment is made with the "advice and consent of the Senate," and is, therefore, submitted for your consideration.

Respectfully,
David M. Beasley

Initial Appointment, State Athletic Commission, with term to commence June 30, 1992, and to expire June 30, 1996:

6th Congressional District:

Mr. Luther A. Bradley, Route 4, Box 54-B, Hemingway, S.C. 29554 VICE Franklin M. Stallings (as 6th Congressional District Member - vacant due to redistricting)

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