Current Status Bill Number:4530 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:19980128 Primary Sponsor:Sheheen All Sponsors:Sheheen Drafted Document Number:kgh\15366mm.98 Residing Body:House Current Committee:Agriculture, Natural Resources & Environmental Affairs Com 20 HANR Subject:Environmental audit report, laws; Conservation, Health and Environmental Control, Courts
Body Date Action Description Com Leg Involved
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House 19980128 Introduced, read first time, 20 HANR
referred to Committee
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TO AMEND SECTION 48-57-50, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO REVOCATION OF THE PRIVILEGE OF AN ENVIRONMENTAL AUDIT REPORT IN ADMINISTRATIVE PROCEEDINGS, SO AS TO ADD VIOLATION OF A PERMIT PROVISION OR CONDITION TO PERMIT ISSUANCE AS GROUNDS FOR REVOKING THE PRIVILEGE; TO AMEND SECTION 48-57-60 RELATING TO REVOCATION OF THE PRIVILEGE OF AN ENVIRONMENTAL AUDIT REPORT IN CRIMINAL PROCEEDINGS, SO AS TO ALLOW REVOCATION NOT ONLY FOR WILFUL NONCOMPLIANCE, BUT ALSO FOR RECKLESS OR GROSSLY NEGLIGENT DISREGARD OF ENVIRONMENTAL LAWS AND BY ADDING VIOLATION OF A PERMIT PROVISION OR CONDITION TO PERMIT ISSUANCE AS GROUNDS FOR REVOCATION; AND TO AMEND SECTION 48-57-100 TO REQUIRE RESOLUTION OF THE DISCLOSED VIOLATION WITHIN A REASONABLE TIME AND TO CHARACTERIZE A DISCLOSURE AS NOT VOLUNTARY IF THERE IS A GUILTY FINDING OF A PERMIT VIOLATION OR THERE HAS BEEN A SUCCESSFUL PROSECUTION IN A CRIMINAL PROCEEDING FOR AN ENVIRONMENTAL COMPLIANCE VIOLATION.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 48-57-50 of the 1976 Code, as added by Act 384 of 1996, is amended by adding:
"(3) the report shows a violation of an existing permit provision or the report is required as a condition of the issuance and continued operation under the permit provisions."
SECTION 2. Section 48-57-60 of the 1976 Code, as added by Act 384 of 1996, is amended to read:
"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, reckless disregard of, or grossly negligent disregard of 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.
(3) The report shows a violation of an existing permit provision or the report is required as a condition of the issuance of and continued operation under the permit provisions."
SECTION 3. Section 48-57-100 of the 1976 Code, as added by Act 384 of 1996, is amended to read:
"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 resolves the violation identified in the revealed by that disclosure in a diligent manner within a reasonable time as set by the supervising authority;
(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:
(1) specific permit conditions require monitoring or sampling records and reports or assessment plans and management plans to be maintained or submitted to the department pursuant to an established schedule;
(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.;
(7) the person or entity has been found guilty of a permit violation or has been successfully prosecuted for an environmental compliance 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 4. This act takes effect upon approval by the Governor.