Section 09.25.475. Voluntary disclosure; immunity.

   (a) Except as provided by this section, an owner or operator who makes a voluntary disclosure of a violation of an environmental law, or of circumstances, conditions, or occurrences that constitute or may constitute such a violation, is immune from an administrative or civil penalty for the violation disclosed, for a violation based on the facts disclosed, and for a violation discovered because of the disclosure that was unknown to the owner or operator making the disclosure.
   (b) Immunity is not available under this section if the violation resulted in, or poses or posed an imminent or present threat of, substantial injury to one or more persons at the site audited or to persons, property, or the environment offsite.
   (c) A disclosure is voluntary for the purposes of this section only if
        (1) the disclosure is made promptly after knowledge of the information disclosed is obtained by the owner or operator;
        (2) the disclosure is made in writing by certified mail to the department or a municipality with enforcement jurisdiction with regard to the violation disclosed;
        (3) an investigation of the violation was not initiated or the violation was not independently detected by the department or a municipality with enforcement jurisdiction before the disclosure was made using certified mail; under this paragraph, the department or municipality has the burden of proving that an investigation of the violation was initiated or the violation was detected before receipt of the certified mail; and
        (4) the disclosure arises out of a voluntary environmental audit.
   (d) To qualify for immunity under this section, the owner or operator making the disclosure must
        (1) promptly initiate appropriate efforts to achieve compliance and remediation and pursue those efforts with due diligence;
        (2) promptly initiate appropriate efforts to discontinue, abate, or mitigate any conditions or activities causing injury or likely to cause imminent injury to one or more persons at the site audited or to person, property, or the environment offsite;
        (3) correct the violation within 90 days or enter into a compliance agreement with the department or the municipality, as appropriate, that provides for completion of corrective and remedial measures within a reasonable time;
        (4) implement appropriate measures designed to prevent the recurrence of the violation; and
        (5) cooperate with the department or municipality, as appropriate, in connection with an investigation of the issues identified in the disclosure; the department or municipality may request that the owner or operator allow the department or municipality to review, under a written claim of confidentiality as described in AS 09.25.455(b)(3), the part of the audit report that describes the implementation plan or tracking system developed to correct past noncompliance, improve current compliance, or prevent future noncompliance.
   (e) A disclosure is not voluntary for purposes of this section if it is a disclosure to the department or municipality expressly required by an environmental law, a permit, a license, or an enforcement order or decree.
   (f) Immunity under this section for violation of an environmental law is available only for a violation that is discovered as a result of information or documents first produced or obtained during the time period specified in the notice required under AS 09.25.450(b).
   (g) During the period between receipt of the audit notice required under AS 09.25.450(b) and the specified end date of the audit, the department or municipality may not initiate an inspection, monitoring, or other investigative activity concerning the audited facility, operation, or property based on the receipt of a notice under AS 09.25.450. The department or municipality has the burden of proving that an inspection, monitoring, or other investigative activity concerning the audited facility, operation, or property initiated after receiving a notice under AS 09.25.450 was not initiated based on receiving the notice.
   (h) A violation that has been voluntarily disclosed and to which immunity applies under this section shall be identified by the department or municipality in its compliance history report as having been voluntarily disclosed.
   (i) This section may not be construed to prevent the department or municipality from
        (1) seeking injunctive relief; or
        (2) issuing an emergency order in a situation involving an imminent and substantial danger to public health or welfare or the environment.

Authorities

9.25.450; 9.25.480

Notes

References

AS 9.25.450 .450">Sec. 09.25.450. Audit report privilege.
AS 9.25.480 .480">Sec. 09.25.480. Exceptions to immunity; mitigation.

History

(Sec. 2 ch 29 SLA 1997)