Printed Page 3220, May 9
| Printed Page 3240, May 9
|
Printed Page 3220, May 9
| Printed Page 3240, May 9
| (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 require disclosure of the audit report only if the factors set forth in this section apply. In a civil proceeding, the court, after an in camera review consistent with the South Carolina Rules of Civil Procedure, may require disclosure of material for which the privilege provided for in Section 48-57-30 is asserted only 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;
(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 as provided for in Section 48-57-50, may require disclosure of material for which the privilege provided for in Section 48-57-30 is asserted, only 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 willful 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 48-57-70. 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.
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.
(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; and
(4) the person or entity making the disclosure cooperates with the appropriate agency in connection with investigation of the issues identified in the disclosure.
(C) A disclosure is not voluntary for purposes of this section if:
(1) specific permit conditions require monitoring or sampling reports to be submitted to the department pursuant to an established schedule;
(2) specific permit conditions or environmental laws require notification of releases to the environment;
(3) the violation was committed intentionally and willfully by the person or entity making the disclosure;
(4) the violation was not corrected in a diligent manner; or
(5) significant environmental harm or a public health threat was caused by the 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.
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
Renumber sections to conform.
Amend title to conform.
Rep. SHARPE explained the amendment.
The amendment was then adopted.
Rep. SHEHEEN proposed the following Amendment No. 2, which was tabled.
Amend the bill, as and if amended, Section 48-57-100 by adding a new subsection ( ) under Section (C) to read as follows:
( ) The person or entity has been found guilty of a permit violation or has been successfully prosecuted for a violation of Section 48-57-60.
Rep. SHEHEEN explained the amendment.
Rep. HASKINS moved to table the amendment.
Rep. SHEHEEN demanded the yeas and nays, which were taken resulting as
follows:
Those who voted in the affirmative are:
Allison Bailey Brown, H. Cain Cato Chamblee Cooper Cotty Dantzler Davenport Easterday Fair Felder Fleming Fulmer Gamble Harrell Harris, J. Harrison Harvin Haskins Herdklotz Huff Keegan Kelley Kinon Klauber Knotts Koon Lanford Law Limbaugh Limehouse Littlejohn Mason McKay Meacham Quinn Rice Riser Robinson Sandifer Sharpe Simrill Smith, D. Smith, R. Stuart Tripp Trotter Vaughn Waldrop Walker Wells Wilder
Wilkes Wilkins Witherspoon Wofford Wright Young, A. Young, J.
Those who voted in the negative are:
Anderson Askins Baxley Breeland Brown, G. Brown, J. Brown, T. Byrd Cobb-Hunter Cromer Delleney Govan Hallman Hodges Howard Jennings Kennedy Keyserling Kirsh Lloyd Martin McCraw McTeer Moody-Lawrence Neal Neilson Phillips Rhoad Richardson Rogers Scott Seithel Sheheen Shissias Spearman Stille Thomas Townsend Whatley Whipper, L. Whipper, S. White Worley
So, the amendment was tabled.
Rep. SHEHEEN proposed the following Amendment No. 3, which was tabled.
Amend the bill, as and if amended, Section 48-57-60 by striking Section (2) (a) and substituting a new section to read as follows:
(2) (a) The material shows evidence of willful noncompliance with, reckless disregard of, or grossly negligent disregard of applicable environmental laws.
Rep. SHEHEEN explained the amendment.
Rep. SHARPE moved to table the amendment.
Those who voted in the affirmative are:
Allison Bailey Brown, H. Cain Cato Chamblee Cotty Dantzler Davenport Easterday Fair Felder Fleming Fulmer Gamble Harrell Harris, J. Harrison Haskins Herdklotz Hines Huff Keegan Kelley Kinon Klauber Knotts Koon Lanford Law Limbaugh Limehouse Littlejohn Meacham Neilson Rice Riser Robinson Sandifer Sharpe Simrill Smith, D. Smith, R. Spearman Stuart Townsend Tripp Trotter Vaughn Waldrop Walker Wells Wilder Wilkes Wilkins Witherspoon Wofford Wright Young, A. Young, J.
Those who voted in the negative are:
Anderson Askins Baxley Boan Breeland Brown, J. Brown, T. Byrd Cobb-Hunter Cromer Delleney Govan Hallman Harvin Hodges Hutson Jennings Kennedy Keyserling Kirsh Lloyd McCraw McTeer Moody-Lawrence Neal Phillips Rhoad Richardson Rogers Seithel Sheheen Shissias Stille
Thomas Tucker Whatley Whipper, L. Whipper, S.
So, the amendment was tabled.
Rep. SHEHEEN proposed the following Amendment No. 4, which was tabled.
Amend the bill, as and if amended, Section 48-57-60 by adding Section (3) to read as follows:
(3) The report shows a violation of any existing permit provisions or the report is required as a condition of the issuance and continued operation under the permit provisions.
Rep. SHEHEEN explained the amendment.
Rep. SHARPE spoke against the amendment.
Rep. HASKINS spoke against the amendment.
Rep. SHARPE moved to table the amendment, which was agreed to.
Rep. SHEHEEN proposed the following Amendment No. 5, which was tabled.
Amend the bill, as and if amended, Section 48-57-100 by striking Subsection (B) (3) and substituting language to read as follows:
(3) The person or entity making the disclosure resolves any violation revealed by that disclosure within a reasonable time as set by the supervising authority.
Rep. SHEHEEN explained the amendment.
Rep. WILKES spoke against the amendment.
Rep. SHARPE moved to table the amendment.
Rep. RICHARDSON demanded the yeas and nays, which were taken resulting as
follows:
Those who voted in the affirmative are:
Allison Bailey Boan Brown, H. Cain Cato Chamblee Cooper Dantzler Davenport Easterday Felder
Fleming Fulmer Gamble Harrell Harris, J. Harrison Harvin Haskins Herdklotz Huff Jennings Keegan Kelley Kirsh Knotts Koon Lanford Law Limbaugh Limehouse Littlejohn Mason McAbee McKay Meacham Neilson Quinn Rhoad Rice Riser Robinson Sandifer Seithel Sharpe Simrill Smith, D. Smith, R. Spearman Stuart Townsend Tripp Trotter Vaughn Waldrop Walker Wells Wilder Wilkes Wilkins Witherspoon Wofford Wright Young, A. Young, J.
Those who voted in the negative are:
Anderson Baxley Breeland Brown, J. Byrd Carnell Cobb-Hunter Cotty Cromer Delleney Hallman Hutson Keyserling Kinon Lloyd Martin McCraw McTeer Moody-Lawrence Neal Phillips Richardson Rogers Scott Sheheen Shissias Stille Thomas Tucker Whatley Whipper, L. Whipper, S. White
So, the amendment was tabled.
Rep. ROGERS proposed the following Amendment No. 7 (Doc Name
L:\council\legis\amend\PT\1953AC.95), which was tabled.
/Section 48-57-50. In an administrative proceeding before an Administrative Law Judge or in a civil proceeding, a party may seek by motion a declaratory ruling on the issue of whether an environmental audit report is privileged. For purposes of the declaratory ruling only, the judge shall require the production of the environmental audit report for review by the party seeking the ruling. The court may finally require disclosure of the audit report only if the court determines that/
Amend further, Section 48-57-60, Page 3624-4, by deleting Lines 26-27 and inserting:
Section 48-57-60. In a criminal proceeding after an in camera review in which the court requires production of the environmental audit report for review by the solicitor or Attorney General for the purpose of challenging the privilege, the court may require/
Amend further, Section 48-57-40, Page 3624-3, by deleting /./ on Line 43 and inserting/;/; and by inserting after Line 43:
/disclosure made to a party in an administrative or civil proceeding pursuant to Section 48-57-50 for purposes of a declaratory ruling or to a solicitor or the Attorney General pursuant to Section 48-57-60 for purposes of determining in a criminal proceeding if the report is privileged/
Amend title to conform.
Rep. ROGERS explained the amendment.
The SPEAKER granted Rep. WALDROP a leave of absence for the remainder of the day.
Rep. ROGERS continued speaking.
Rep. ROGERS continued speaking.
Rep. SHARPE moved to table the amendment.
Those who voted in the affirmative are:
Allison Askins Bailey Boan Brown, H. Cain Carnell Cato Chamblee Cotty Dantzler Davenport Easterday Felder Fleming Fulmer Gamble Hallman Harrell Harris, J. Harvin Haskins Herdklotz Hines Huff Jennings Keegan Kelley Klauber Knotts Koon Lanford Law Limbaugh Limehouse Littlejohn Mason McAbee McCraw Meacham Neilson Rhoad Rice Riser Robinson Sandifer Seithel Sharpe Simrill Smith, D. Smith, R. Spearman Stille Stuart Tripp Trotter Vaughn Walker Wells Wilder Wilkes Wilkins Witherspoon Wofford Worley Wright Young, A.
Those who voted in the negative are:
Anderson Baxley Breeland Brown, J. Cobb-Hunter Cromer Delleney Howard Keyserling Kirsh Lloyd McTeer Moody-Lawrence Neal Richardson Rogers Scott Sheheen
Thomas Whatley Whipper, L. Whipper, S.
So, the amendment was tabled.
Printed Page 3220, May 9
| Printed Page 3240, May 9
|