Texas Health and Safety Code

As effective September 1, 2019

Subchapter D

Sec. 1101.151: Immunity for Violation Voluntarily Disclosed

Except as otherwise provided by this subchapter, a person who makes a voluntary disclosure of a violation of an environmental or health and safety law is immune from an administrative or civil penalty for the violation disclosed.

Comments

Added by Acts 2017, 85th Leg., R.S., Ch. 324 (S.B. 1488), Sec. 20.002(a), eff. September 1, 2017.

Sec. 1101.152: Nature of Voluntary Disclosure

(a) A disclosure is voluntary for purposes of this subchapter only if:

(1) the disclosure was made:

(A) promptly after knowledge of the information disclosed is obtained by the person making the disclosure; or

(B) not later than the 45th day after the acquisition closing date, if the violation was discovered during an audit conducted before the acquisition closing date by a person considering the acquisition of the regulated facility or operation;

(2) the disclosure was made in writing by certified mail to an agency that has regulatory authority with regard to the violation disclosed;

(3) an investigation of the violation was not initiated or the violation was not independently detected by an agency with enforcement jurisdiction before the disclosure was made using certified mail;

(4) the disclosure arises out of a voluntary environmental or health and safety audit;

(5) the person making the disclosure initiates an appropriate effort to achieve compliance, pursues that effort with due diligence, and corrects the noncompliance within a reasonable time;

(6) the person making the disclosure cooperates with the appropriate agency in connection with an investigation of the issues identified in the disclosure; and

(7) the violation did not result in:

(A) injury or imminent and substantial risk of serious injury to one or more persons at the site; or

(B) off-site substantial actual harm or imminent and substantial risk of harm to persons, property, or the environment.

(b) For a disclosure described by Subsection (a)(1)(B), the person making the disclosure must certify in the disclosure that before the acquisition closing date:

(1) the person was not responsible for the environmental, health, or safety compliance at the regulated facility or operation that is subject to the disclosure;

(2) the person did not have the largest ownership share of the seller;

(3) the seller did not have the largest ownership share of the person; and

(4) the person and the seller did not have a common corporate parent or a common majority interest owner.

(c) A disclosure is not voluntary for purposes of this subchapter if the disclosure is a report to a regulatory agency required solely by a specific condition of an enforcement order or decree.

Comments

Added by Acts 2017, 85th Leg., R.S., Ch. 324 (S.B. 1488), Sec. 20.002(a), eff. September 1, 2017.

Sec. 1101.153: Burden of Proof with Respect to Voluntary Disclosure

(a) In a civil or administrative enforcement action brought against a person for a violation for which the person claims to have made a voluntary disclosure, the person claiming the immunity created by this subchapter has the burden of establishing a prima facie case that the disclosure was voluntary.

(b) After the person claiming the immunity establishes a prima facie case of voluntary disclosure, other than a case in which immunity does not apply under Section 1101.157, the enforcement authority has the burden of rebutting the presumption by a preponderance of the evidence.

Comments

Added by Acts 2017, 85th Leg., R.S., Ch. 324 (S.B. 1488), Sec. 20.002(a), eff. September 1, 2017.

Sec. 1101.154: Notice Requirement

(a) This section does not apply to an environmental or health and safety audit conducted before the acquisition closing date by a person considering the acquisition of the regulated facility or operation that is the subject of the audit.

(b) To receive immunity under this subchapter, a facility conducting an environmental or health and safety audit under this chapter must provide notice to an appropriate regulatory agency of the fact that it is planning to begin the audit.

(c) The notice must specify:

(1) the facility or portion of the facility to be audited;

(2) the anticipated time the audit will begin; and

(3) the general scope of the audit.

(d) The notice may provide notification of more than one scheduled environmental or health and safety audit at a time.

Comments

Added by Acts 2017, 85th Leg., R.S., Ch. 324 (S.B. 1488), Sec. 20.002(a), eff. September 1, 2017.

Sec. 1101.155: Notice Requirement for Certain Audits Begun Before Acquisition Closing Date

(a) A person that begins an environmental or health and safety audit before becoming the owner of the regulated facility or operation that is the subject of the audit may continue the audit after the acquisition closing date if, not later than the 45th day after the acquisition closing date, the person provides notice to an appropriate regulatory agency of the fact that the person intends to continue an ongoing audit.

(b) The notice must specify:

(1) the facility or portion of the facility being audited;

(2) the date the audit began; and

(3) the general scope of the audit.

(c) The person must certify in the notice that before the acquisition closing date:

(1) the person was not responsible for the scope of the environmental, health, or safety compliance being audited at the regulated facility or operation;

(2) the person did not have the largest ownership share of the seller;

(3) the seller did not have the largest ownership share of the person; and

(4) the person and the seller did not have a common corporate parent or a common majority interest owner.

Comments

Added by Acts 2017, 85th Leg., R.S., Ch. 324 (S.B. 1488), Sec. 20.002(a), eff. September 1, 2017.

Sec. 1101.156: Identification of Violation in Compliance History Report

A violation that has been voluntarily disclosed and to which immunity applies under this subchapter must be identified in a compliance history report as being voluntarily disclosed.

Comments

Added by Acts 2017, 85th Leg., R.S., Ch. 324 (S.B. 1488), Sec. 20.002(a), eff. September 1, 2017.

Sec. 1101.157: Exception to Immunity: Certain Violations and Offenses; Imposition of Penalty; Mitigating Factors

(a) The immunity established by this subchapter does not apply and an administrative or civil penalty may be imposed under applicable law if:

(1) the person who made the disclosure intentionally or knowingly committed or was responsible within the meaning of Section 7.02, Penal Code, for the commission of the disclosed violation;

(2) the person who made the disclosure recklessly committed or was responsible within the meaning of Section 7.02, Penal Code, for the commission of the disclosed violation and the violation resulted in substantial injury to one or more persons at the site or off-site harm to persons, property, or the environment;

(3) the offense was committed intentionally or knowingly by a member of the person's management or an agent of the person and the person's policies or lack of prevention systems contributed materially to the occurrence of the violation;

(4) the offense was committed recklessly by a member of the person's management or an agent of the person, the person's policies or lack of prevention systems contributed materially to the occurrence of the violation, and the violation resulted in substantial injury to one or more persons at the site or off-site harm to persons, property, or the environment; or

(5) the violation has resulted in a substantial economic benefit that gives the violator a clear advantage over its business competitors.

(b) A penalty that is imposed under Subsection (a) should, to the extent appropriate, be mitigated by factors such as:

(1) the voluntariness of the disclosure;

(2) efforts by the disclosing party to conduct environmental or health and safety audits;

(3) remediation;

(4) cooperation with government officials investigating the disclosed violation;

(5) the period of ownership of the regulated facility or operation; or

(6) other relevant considerations.

Comments

Added by Acts 2017, 85th Leg., R.S., Ch. 324 (S.B. 1488), Sec. 20.002(a), eff. September 1, 2017.

Sec. 1101.158: Exception to Immunity: Violations That Constitute Pattern of Disregard of Environmental Or Health and Safety Laws

(a) The immunity established by this subchapter does not apply if a court or administrative law judge finds that the person claiming the immunity has, after May 23, 1995, repeatedly or continuously committed significant violations and not attempted to bring the facility or operation into compliance, so as to constitute a pattern of disregard of environmental or health and safety laws.

(b) For violations committed by a person to be considered a "pattern" under Subsection (a), the person must have committed a series of violations that were due to separate and distinct events occurring within a three-year period at the same facility or operation.

Comments

Added by Acts 2017, 85th Leg., R.S., Ch. 324 (S.B. 1488), Sec. 20.002(a), eff. September 1, 2017.