MISSISSIPPI LEGISLATURE

2000 Regular Session

To: Environment Prot, Cons and Water Res

By: Senator(s) Dearing

AN ACT TO AMEND SECTION 49-2-2, MISSISSIPPI CODE OF 1972, TO REVISE THE DEFINITION OF ENVIRONMENTAL SELF-EVALUATION REPORT; TO AMEND SECTION 49-2-71, MISSISSIPPI CODE OF 1972, TO CLARIFY THE EVIDENTIARY PRIVILEGE GRANTED TO ENVIRONMENTAL SELF-EVALUATION REPORTS; TO REQUIRE THE PERSON ASSERTING THE PRIVILEGE TO PROVE THE APPLICABILITY OF THE PRIVILEGE; TO EXPRESSLY STATE THAT THE ENVIRONMENTAL SELF-EVALUATION REPORT PRIVILEGE DOES NOT APPLY TO CRIMINAL PROCEEDINGS; TO AMEND SECTIONS 17-17-29, 49-17-43 AND 49-17-427, MISSISSIPPI CODE OF 1972, TO REVISE THE CONDITIONS PLACED ON THE REDUCTION OF PENALTIES FOR NONCOMPLIANCE DISCOVERED AND REPORTED AS THE RESULT OF A VOLUNTARY SELF-EVALUATION; AND FOR RELATED PURPOSES.

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

SECTION 1. Section 49-2-2, Mississippi Code of 1972, is amended as follows:

49-2-2. For purposes of this chapter, the following words and phrases shall have the meanings ascribed herein, unless the context otherwise requires:

(a) "Department" means the Mississippi Department of Environmental Quality.

(b) "Commission" means the Mississippi Commission on Environmental Quality.

(c) "Office" means an administrative subdivision of the department.

(d) "Executive director" means the chief officer of the department.

(e) "Environmental self-evaluation report" means any document or set of documents prepared as a result of a voluntary self-evaluation, and labeled "ENVIRONMENTAL SELF-EVALUATION REPORT PRIVILEGED DOCUMENT," that may include any audit, report, finding, communication, or opinion or any draft of an audit, report, finding, communication or opinion, prepared solely as a part of or in connection with a voluntary self-assessment that is done in good faith, which report is kept and maintained solely within the confines of the evaluated party.

(f) "Voluntary self-evaluation" means a self-initiated internal assessment, audit, or review, not otherwise expressly required by environmental law, of a facility or an activity at a facility, or management systems related to a facility or an activity. A voluntary self-evaluation shall be designed to identify and prevent noncompliance with environmental laws, and improve compliance with environmental laws. In addition, a voluntary self-evaluation must be conducted by an owner or operator of a facility or an employee of the owner or operator or by a private contractor engaged by the owner or operator. The voluntary self-evaluation shall have a definite beginning date and a definite completion date.

(g) "Environmental law" means any federal, state or local statute, rule or regulation, or any order, award, agreement, release, permit, license, standard or notice from or issued by a federal, state or local court, agency or governmental authority in pursuance thereof.

SECTION 2. Section 49-2-71, Mississippi Code of 1972, is amended as follows:

49-2-71. (1) An environmental self-evaluation report, as defined in Section 49-2-2, is privileged and is not admissible or subject to compelled production through rules of discovery or by subpoena in any * * * civil * * * or administrative proceeding * * *, unless:

(a) The person for whom the environmental self-evaluation report was prepared, irrespective of whether the self-evaluation report was conducted and/or prepared by a private contractor hired by the person, expressly waives the provisions of this section;

(b) The court of record, or hearing officer, who shall be neutral and independent, after in camera review, determines that:

(i) The environmental self-evaluation report shows evidence that the person for which the environmental self-evaluation report was prepared is not or was not in compliance with an environmental law; and

(ii) The person did not initiate appropriate efforts to achieve compliance with the environmental law or complete any necessary permit application promptly after the noncompliance with the environmental law was discovered and, as a result, the person did not or will not achieve compliance with the environmental law or complete the necessary permit application within a reasonable amount of time.

(iii) For the purposes of paragraphs (b)(i) and (b)(ii) only, if the evidence shows noncompliance by a person with more than one (1) environmental law, the person may demonstrate that appropriate efforts to achieve compliance were or are being taken by instituting a comprehensive program that establishes a phased schedule of actions to be taken to bring the person into compliance with all of such environmental laws.

(c) The court of record or hearing officer, who shall be neutral and independent, after an in camera review, determines that the privilege is being asserted for a fraudulent purpose or that the environmental self-evaluation report was prepared to avoid disclosure of information in an investigative, administrative, or judicial proceeding that was underway, or for which the person had been provided written notification that an investigation into a specific violation had been initiated; * * *

(d) The court of record or hearing officer, who shall be neutral and independent, determines that even if subject to the privilege, it is found that a condition exists that demonstrates an actual or imminent, and substantial hazard or endangerment to the public health and safety or the environment; or

(e) The court of record or hearing officer finds that the self-evaluation report shows evidence of noncompliance with environmental law and the noncompliance caused or resulted in serious harm to public health or the environment.

(2) The self-evaluation privilege created by this section does not apply to:

(a) Documents or information required to be developed, maintained or reported pursuant to any environmental law or any other law or regulation; or

(b) Documents or other information required to be made available or furnished to a regulatory agency pursuant to any environmental law or any other law or regulation; or

(c) Information in the possession of a regulatory agency obtained through observation, sampling, monitoring or otherwise and which is subject to public disclosure pursuant to the Mississippi Public Records Act of 1983; or

(d) Information obtained through any source independent of the environmental self-evaluation report; or

(e) Documents existing prior to the commencement of and independent of the voluntary self-evaluation with the exception of evidence establishing a request for compliance assistance to the appropriate government agency or authority.

(3) (a) Upon a showing by any party, based upon independent knowledge, that probable cause exists to believe that an exception to the self-evaluation privilege under subsection (1) of this section is applicable to an environmental self-evaluation report or that the privilege does not apply to the environmental self-evaluation report pursuant to the provisions of subsection (2) of this section, then a court of record or hearing officer, who shall be neutral and independent, may allow such party limited access to the environmental self-evaluation report for the purposes of an in camera review only. The court of record or the hearing officer may grant limited access to all or part of the environmental self-evaluation report under * * * this subsection (3) upon those conditions as may be necessary to protect the confidentiality of the environmental self-evaluation report, in case the court or hearing officer ultimately determines that the document is privileged. If the court or hearing officer ultimately determines that the document is privileged, a moving party who obtains access to an environmental self-evaluation report under this subsection (3) may not divulge any information from the report except as specifically allowed by the court or hearing officer.

(b) If any party divulges all or any part of the information contained in an environmental self-evaluation report in violation of the provisions of paragraph (a) of this subsection (3) or if any other person knowingly divulges or disseminates all or any part of the information contained in an environmental self-evaluation report that was provided to such person in violation of the provisions of paragraph (a) of this subsection (3), such party or other person is liable for any damages caused by the divulgence or dissemination of the information that are incurred by the person for which the environmental self-evaluation report was prepared. The court or hearing officer also may issue such contempt orders and sanctions against the offending party or such party's legal counsel as may be necessary to ensure compliance.

(4) Nothing in this section limits, waives or abrogates the scope or nature of any statutory or common law privilege.

(5) A person asserting a voluntary self-evaluation privilege has the burden of proving the applicability of the privilege. A party seeking disclosure of an environmental self-evaluation report has the burden of proving that such privilege does not exist under this section.

(6) All environmental self-evaluation reports that are protected by the self-evaluation privilege created by this section shall be privileged and exempt from the provisions of the Mississippi Public Records Act in accordance with Section 25-61-11, Mississippi Code of 1972.

(7) The privilege created by this section does not apply to criminal investigations or proceedings. If an environmental self-evaluation report is obtained, reviewed or used in a criminal proceeding, the privilege created by this section applicable to administrative or civil proceedings is not waived or eliminated.

SECTION 3. Section 17-17-29, Mississippi Code of 1972, is amended as follows:

17-17-29. (1) Any person found by the commission violating any of the provisions of Sections 17-17-1 through 17-17-47, or any rule or regulation or written order of the commission in pursuance thereof, or any condition or limitation of a permit, shall be subject to a civil penalty of not more than Twenty-five Thousand Dollars ($25,000.00) for each violation, such penalty to be assessed and levied by the commission after a hearing. Appeals from the imposition of the civil penalty may be taken to the chancery court in the same manner as appeals from orders of the commission. If the appellant desires to stay the execution of a civil penalty assessed by the commission, he shall give bond with sufficient resident sureties of one or more guaranty or surety companies authorized to do business in this state, payable to the State of Mississippi, in an amount equal to double the amount of any civil penalty assessed by the commission, as to which the stay of execution is desired, conditioned, if the judgment shall be affirmed, to pay all costs of the assessment entered against the appellant. Each day upon which such violation occurs shall be deemed a separate and additional violation.

(2) In lieu of, or in addition to, the penalty provided in subsection (1) of this section, the commission shall have the power to institute and maintain in the name of the state any and all proceedings necessary or appropriate to enforce the provisions of Sections 17-17-1 through 17-17-47, rules and regulations in force pursuant thereto, and orders and permits made and issued under those sections, in the appropriate circuit, chancery, county or justice court of the county in which venue may lie. The commission may obtain mandatory or prohibitory injunctive relief, either temporary or permanent, and in cases of imminent and substantial hazard as set forth in Section 17-17-27, subsection (4), it shall not be necessary in such cases that the state plead or prove (a) that irreparable damage would result if the injunction did not issue; (b) that there is no adequate remedy at law; or (c) that a written complaint or commission order has first been issued for the alleged violation.

(3) Any person who violates any of the provisions of, or fails to perform any duty imposed by, Sections 17-17-1 through 17-17-47, or any rule or regulation issued hereunder, or who violates any order or determination of the commission promulgated pursuant to such sections, and causes the death of wildlife shall be liable, in addition to the penalties provided in subsection (1) and/or (2) of this section, to pay to the state an additional amount equal to the sum of money reasonably necessary to replenish such wildlife as determined by the commission after consultation with the Mississippi Commission on Wildlife, Fisheries and Parks. Such amount may be recovered by the commission on behalf of the state in a civil action brought in the appropriate county or circuit court of the county in which venue may lie.

(4) Any person creating, or responsible for creating, through misadventure, happenstance, or otherwise, an immediate necessity for remedial or clean-up action involving solid waste shall be liable for the cost of such remedial or clean-up action and the commission may recover the cost of same by a civil action brought in the circuit court of the county in which venue may lie. This penalty may be recovered in lieu of or in addition to the penalties provided in subsection (1), (2) and/or (3) of this section.

In the event of the necessity for immediate remedial or clean-up action, the commission may contract for same and advance funds from the Pollution Emergency Fund to pay the costs thereof, such advancements to be repaid to the Pollution Emergency Fund upon recovery by the commission as provided herein.

(5) Any person who knowingly violates any provision of this chapter or violates any order issued by the commission under the authority of this chapter shall, upon conviction, be guilty of a misdemeanor and shall be subject to a fine of not more than Twenty-five Thousand Dollars ($25,000.00) for each day of violation or to imprisonment not to exceed one (1) year, or both. Each day's violation shall constitute a separate offense. The voluntary self-evaluation provisions in paragraph (7)(g) shall not apply to this subsection.

(6) All fines, penalties and other sums recovered or collected by the commission for and in behalf of the state under this section shall be deposited in the Pollution Emergency Fund established by Sections 49-17-61 through 49-17-70, and the commission is authorized to receive and accept, from any and all available sources whatsoever, additional funds to be deposited in such fund and expended for the purpose of remedial, clean-up or abatement actions involving the introduction of solid waste upon or into the land, air or waters of this state in violation of Sections 17-17-1 through 17-17-47, any rule or regulation or written order of the commission in pursuance thereof, or any condition or limitation of a permit.

(7) In determining the amount of any penalty under this chapter, the commission shall consider at a minimum:

(a) The willfulness of the violation;

(b) Any damage to air, water, land or other natural resources of the state or their uses;

(c) Costs of restoration and abatement;

(d) Economic benefit as a result of noncompliance;

(e) The seriousness of the violation, including any harm to the environment and any hazard to the health, safety and welfare of the public;

(f) Past performance history; and

(g) Whether the noncompliance was discovered and reported as the result of a voluntary self-evaluation. If a person discovers as a result of a voluntary self-evaluation, information related to noncompliance with an environmental law and voluntarily discloses that information to the department, commission or any employee thereof, the commission shall, to the greatest extent possible, reduce a penalty, if any, determined by the commission, except for economic benefit as a result of noncompliance, to a de minimis amount if all of the following are true:

(i) The disclosure is made promptly after knowledge of the information disclosed is obtained by the person; (ii) The person making the disclosure initiates the appropriate corrective actions and pursues those corrective actions with due diligence completes the corrective actions, and takes all reasonable and prudent action necessary to prevent recurrence of the noncompliance;

(iii) The person making the disclosure cooperates with the commission and the department regarding investigation of the issues identified in the disclosure;

(iv) The person is not otherwise required by an environmental law to make the disclosure to the commission or the department;

(v) The information was not obtained through any source independent of the voluntary self-evaluation or by the department through observation, sampling or monitoring; * * *

(vi) The noncompliance did not result in actual or imminent, and substantial hazard or endangerment threatening the public health, safety or welfare or the environment and did not result in the necessary expenditure of environmental abatement or restoration costs for abatement or restoration outside the confines of the noncomplying facility by any party;

(vii) The noncompliance did not result in serious harm to the public health or the environment;

(viii) The noncompliance (or closely related noncompliance) has not occurred previously within the past three (3) years at the same facility, or is not part of a pattern of federal, state or local violations by the facility's owner, operator or parent organization (if any), which has occurred within the past five (5) years; and

(ix) Terms used in this paragraph (g) shall have the meanings ascribed in Section 49-2-2.

(8) If a person asserts the environmental self-evaluation report privilege, the commission shall not consider or hold such assertion against the person when the commission determines the amount of any penalty.

(9) Any provision of this section and chapter regarding liability for the costs of clean-up, removal, remediation or abatement of any pollution, hazardous waste or solid waste shall be limited as provided in Section 49-17-42 and rules adopted thereto.

SECTION 4. Section 49-17-43, Mississippi Code of 1972, is amended as follows:

49-17-43. (1) Any person found by the commission violating any of the provisions of Sections 49-17-1 through 49-17-43, or any rule or regulation or written order of the commission in pursuance thereof or any condition or limitation of a permit, except a permit required under the Solid Wastes Disposal Law of 1974 (Sections 17-17-1 through 17-17-47), shall be subject to a civil penalty of not more than Twenty-five Thousand Dollars ($25,000.00), for each violation, such penalty to be assessed and levied by the commission after a hearing as provided hereinabove. Appeals from the imposition of the civil penalty may be taken to the chancery court in the same manner as appeals from orders of the commission. If the appellant desires to stay the execution of a civil penalty assessed by the commission, he shall give bond with sufficient resident sureties of one or more guaranty or surety companies authorized to do business in this state, payable to the State of Mississippi, in an amount equal to double the amount of any civil penalty assessed by the commission, as to which the stay of execution is desired, conditioned, if the judgment shall be affirmed, to pay all costs of the assessment entered against the appellant. Each day upon which a violation occurs shall be deemed a separate and additional violation.

Any person violating any provision of the Solid Wastes Disposal Law of 1974 (Sections 17-17-1 through 17-17-47), any rule or regulation made pursuant to that law, or any order issued by the commission under the authority of that law shall be subject to the penalties provided in Section 17-17-29.

(2) In lieu of, or in addition to, the penalty provided in subsection (1) of this section, the commission shall have power to institute and maintain in the name of the state any and all proceedings necessary or appropriate to enforce the provisions of Sections 49-17-1 through 49-17-43, rules and regulations in force pursuant thereto, and orders and permits made and issued under those sections, in the appropriate circuit, chancery, county or justice court of the county in which venue may lie. The commission may obtain mandatory or prohibitory injunctive relief, either temporary or permanent, and in cases of actual or imminent, and substantial hazard or endangerment as set forth in Section 49-17-27, it shall not be necessary in such cases that the state plead or prove: (a) that irreparable damage would result if the injunction did not issue; (b) that there is no adequate remedy at law; or (c) that a written complaint or commission order has first been issued for the alleged violation.

(3) Any person who violates any of the provisions of, or fails to perform any duty imposed by, Sections 49-17-1 through 49-17-43 or any rule or regulation issued hereunder, or who violates any order or determination of the commission promulgated pursuant to such sections, and causes the death of fish or other wildlife shall be liable, in addition to the penalties provided in subsection (1) and/or (2) of this section, to pay to the state an additional amount equal to the sum of money reasonably necessary to restock such waters or replenish such wildlife as determined by the commission after consultation with the Mississippi Commission on Wildlife, Fisheries and Parks. Such amount may be recovered by the commission on behalf of the state in a civil action brought in the appropriate county or circuit court of the county in which venue may lie.

(4) Any person who owns or operates facilities which, through misadventure, happenstance or otherwise, cause pollution necessitating immediate remedial or clean-up action shall be liable for the cost of such remedial or clean-up action and the commission may recover the cost of same by a civil action brought in the circuit court of the county in which venue may lie. This penalty may be recovered in lieu of or in addition to the penalties provided in subsection (1), (2) and/or (3) of this section.

In the event of the necessity for immediate remedial or clean-up action, the commission may contract for same and advance funds from the Pollution Emergency Fund to pay the costs thereof, such advancements to be repaid to the Pollution Emergency Fund upon recovery by the commission as provided above.

(5) It is unlawful for any person to: (a) discharge pollutants in violation of Section 49-17-29 or in violation of any condition or limitation included in a permit issued under Section 49-17-29 or (b) introduce pollutants into publicly owned treatment works in violation of pretreatment standards or in violation of toxic effluent standards; and, upon conviction thereof, such person shall be punished by a fine of not less than Two Thousand Five Hundred Dollars ($2,500.00) nor more than Twenty-five Thousand Dollars ($25,000.00) per day of violation. The voluntary self-evaluation provisions in paragraph (7)(g) shall not apply to this subsection.

(6) All fines, penalties and other sums recovered or collected by the commission for and in behalf of the state under this section shall be deposited in the Pollution Emergency Fund established under this chapter, and the commission is authorized to receive and accept, from any funds and all available sources whatsoever, additional funds to be deposited in such fund and expended for the purpose of remedial, clean-up or abatement actions involving pollution of the land, air or waters of the state in violation of Sections 49-17-1 through 49-17-43, any rule or regulation or written order of the commission in pursuance thereof, or any condition or limitation of a permit.

(7) In determining the amount of any penalty under this chapter, the commission shall consider at a minimum:

(a) The willfulness of the violation;

(b) Any damage to air, water, land or other natural resources of the state or their uses;

(c) Costs of restoration and abatement;

(d) Economic benefit as a result of noncompliance;

(e) The seriousness of the violation, including any harm to the environment and any hazard to the health, safety and welfare of the public;

(f) Past performance history; and

(g) Whether the noncompliance was discovered and reported as the result of a voluntary self-evaluation. If a person discovers as a result of a voluntary self-evaluation, information related to noncompliance with an environmental law and voluntarily discloses that information to the department, commission or any employee thereof, the commission shall, to the greatest extent possible, reduce a penalty, if any, determined by the commission, except for economic benefit as a result of noncompliance, to a de minimis amount if all of the following are true:

(i) The disclosure is made promptly after knowledge of the information disclosed is obtained by the person;

(ii) The person making the disclosure initiates the appropriate corrective actions and pursues those corrective actions with due diligence, completes the corrective actions, and takes all reasonable and prudent action necessary to prevent recurrence of the noncompliance;

(iii) The person making the disclosure cooperates with the commission and the department regarding investigation of the issues identified in the disclosure;

(iv) The person is not otherwise required by an environmental law to make the disclosure to the commission or the department;

(v) The information was not obtained through any source independent of the voluntary self-evaluation or by the department through observation, sampling or monitoring; * * *

(vi) The noncompliance did not result in actual or imminent, and substantial hazard or endangerment threatening the public health, safety or welfare or the environment, and did not result in the necessary expenditure of environmental abatement or restoration costs for abatement or restoration outside the confines of the noncomplying facility by any party;

(vii) The noncompliance did not result in serious harm to the public health or the environment;

(viii) The noncompliance (or closely related noncompliance) has not occurred previously within the past three (3) years at the same facility, or is not part of a pattern of federal, state or local violations by the facility's owner, operator or parent organization (if any), which has occurred within the past five (5) years; and

(ix) Terms used in this paragraph (g) shall have the meanings ascribed in Section 49-2-2.

(8) If a person asserts the environmental self-evaluation report privilege, the commission shall not consider or hold such assertion against the person when the commission determines the amount of any penalty.

(9) Any provisions of this section and chapter regarding liability for the costs of clean-up, removal, remediation or abatement of any pollution, hazardous waste or solid waste shall be limited as provided in Section 49-17-42 and rules adopted thereto.

SECTION 5. Section 49-17-427, Mississippi Code of 1972, is amended as follows:

49-17-427. (1) Whenever the commission or an employee thereof has reason to believe that a violation of any provision of this chapter, or of any order of the commission, or of any regulation promulgated pursuant to this chapter has occurred, the commission shall initiate proceedings in the same manner as provided in Sections 49-17-31 through 49-17-41, Mississippi Code of 1972.

(2) Any person found by the commission violating any of the provisions of Sections 49-17-401 through 49-17-433, or any rule or regulation or written order of the commission shall be subject to a civil penalty of not more than Twenty-five Thousand Dollars ($25,000.00) for each violation per day, such penalty to be assessed and levied by the commission as provided in Sections 49-17-1 through 49-17-43, Mississippi Code of 1972.

(3) In determining the amount of any penalty under this chapter, the commission shall consider at a minimum:

(a) The willfulness of the violation;

(b) Any damage to air, water, land or other natural resources of the state or their uses;

(c) Costs of restoration or abatement;

(d) Economic benefit as a result of noncompliance;

(e) The seriousness of the violation, including any harm to the environment and any hazard to the health, safety and welfare of the public;

(f) Past performance history; and

(g) Whether the noncompliance was discovered and reported as the result of a voluntary self-evaluation. If a person discovers as a result of a voluntary self-evaluation, information related to noncompliance with an environmental law and voluntarily discloses that information to the department, commission or any employee thereof, the commission shall, to the greatest extent possible, reduce a penalty, if any, determined by the commission, except for economic benefit as a result of noncompliance, to a de minimis amount if all of the following are true:

(i) The disclosure is made promptly after knowledge of the information disclosed is obtained by the person;

(ii) The person making the disclosure initiates the appropriate corrective actions and pursues those corrective actions with due diligence, completes the corrective actions, and takes all reasonable and prudent action necessary to prevent recurrence of the noncompliance;

(iii) The person making the disclosure cooperates with the commission and the department regarding investigation of the issues identified in the disclosure;

(iv) The person is not otherwise required by an environmental law to make the disclosure to the commission or the department;

(v) The information was not obtained through any source independent of the voluntary self-evaluation or by the department through observation, sampling or monitoring; * * *

(vi) The noncompliance did not result in actual or imminent, and substantial hazard or endangerment threatening the public health, safety or welfare or the environment and did not result in the necessary expenditure of environmental abatement or restoration costs for abatement or restoration outside the confines of the noncomplying facility by any party;

(vii) The noncompliance did not result in serious harm to the public health or the environment;

(viii) The noncompliance (or closely related noncompliance) has not occurred previously within the past three (3) years at the same facility, or is not part of a pattern of federal, state or local violation by the facility's owner, operator or parent organization (if any), which has occurred within the past five (5) years; and

(ix) Terms used in this paragraph (g) shall have the meanings ascribed in Section 49-2-2.

(4) If a person asserts the environmental self-evaluation report privilege, the commission shall not consider or hold such assertion against the person when the commission determines the amount of any penalty.

(5) Any provisions of this section and chapter regarding liability for the costs of clean-up, removal, remediation or abatement of any pollution, hazardous waste or solid waste shall be limited as provided in Section 49-17-42 and rules adopted thereto.

SECTION 6. This act shall take effect and be in force from and after its passage.