Environmental and Energy Law Blog

Monday, May 27, 2019

Immunity Under the Texas Environmental, Health, and Safety Audit Privilege Act

 

 

 

Under the Texas Environmental, Health, and Safety Audit Privilege Act (“the Act”), those entities who conduct voluntary health, environmental, and safety audits of regulated facilities and operations are entitled to immunity from penalties for violations that are discovered, disclosed, and corrected within a specified amount of time. Below is some additional information about immunity under the Act.

Voluntary disclosure of violations 

In order for an entity to receive immunity, a disclosure must be voluntary and preceded by a notice of audit. A disclosure is considered voluntary if the following conditions are met:

  • The disclosure was made soon after the violation was discovered
  • The disclosure was submitted in writing 
  • The disclosure was made prior to the initiation of an independent investigation 
  • The violation was disclosed as the result of a voluntary audit
  • Efforts to correct the violation are initiated by an entity within a reasonable amount of time of the disclosure
  • The disclosing entity cooperates during the investigation of the issues identified
  • The disclosed violation hasn't caused injury or an imminent risk of injury
  • The disclosure isn't required by an enforcement decree or order 

    And when a violation is discovered during an audit that was conducted prior to an acquisition closing date, the person making the disclosure must certify the following:

  • Before the closing date, he or she wasn't responsible for compliance at the regulated entity
  • Before the closing date, he or she didn't have the largest ownership share of the seller
  • Before the closing date, he or she and the seller didn't have a common corporate parent 

 Limitations

Immunity does not apply under any of the following circumstances:

  • The disclosed violation was committed intentionally or knowingly 
  • The disclosed violation was committed recklessly
  • The disclosed violation resulted in a significant economic benefit that gave the violator an advantage over its competitors
  • An administrative law judge or court finds that the person or entity claiming immunity has continuously committed significant violations and hasn't tried to bring the facility into compliance

Texas Environmental Law Attorneys 

If you or your company have been cited for non-compliance or are facing legal action based on non-compliance, then you need an experienced Texas environmental law attorney like C. William Smalling on your side. Smalling, with a background in engineering, understands both the technical and legal aspects of situations affecting corporations in the oil, gas, and energy industries. Whether negotiating with the government or litigating government enforcement actions and private tort suits, the experience of C. William Smalling provides corporate clients with a significant edge in all oil, gas, and energy matters. We take pride in providing our business clients with the legal tools to remain confident while navigating the complicated world of environmental regulations. If your company is facing legal action or simply needs guidance in the area of environmental law, please contact the Law Office of C. William Smalling for a consultation. 


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