Article 33.--ACTIONS RELATING TO COMMERCIAL ACTIVITY
60-3338.Rebuttable presumption of immunity forvoluntary disclosure ofenvironmental law violation, when; burden of proof; authority to require actionor seek relief; immunity; limitations; good faith effort to voluntarilydisclose violation; abrogation.(a) If any facility owner or operator makes avoluntary disclosure of aviolation of environmentallaws, there shall be arebuttable presumption that the facility owner oroperator is immune from anyadministrative or civil penalties for theviolation disclosed if thedisclosure is one:
(1) Made promptly after knowledge of the information disclosed is obtainedby the facility owner or operator;
(2) made to an agency having regulatory authority with regard to theviolation disclosed before there is notice of a citizen suit or a legalcomplaint by a third party;
(3) arising out of an environmental audit and is related toprivileged information as provided in K.S.A. 60-3334, and amendmentsthereto;
(4) for which the facility owner or operatormaking the disclosure initiates action ina reasonable and diligent manner to resolve the violations identified inthe disclosure; and
(5) in which the facility owner or operator making the disclosure cooperates with theappropriate agency in connection with investigation of the issues identifiedin the disclosure.
(b) A disclosure is not voluntary for purposes of this section if it isrequired by environmental law to be reported to aregulatory authority.
(c) The presumption recognized in subsection (a) may be rebutted andpenalties may be imposed under state law if it is established that:
(1) The disclosure was not voluntary within the meaning of this section;
(2) the violation was committed intentionally and willfully by the facilityowner or operator making the disclosure;
(3) the facility owner or operator did not fullycorrect the violation in a reasonabletime; or
(4) the violation caused serious actual harm or an imminent andsubstantial endangerment to public health or the environment.
(d) In any enforcement action brought against afacility owner or operator regarding aviolation for which the facility owner oroperator claims to have made a voluntarydisclosure within the meaning of this section, the burden of proof concerningvoluntariness of the disclosure shall be allocated as follows:
(1) The facility owner or operator making thevoluntary disclosure claim shall havethe burden of establishing a prima facie case that the disclosure was voluntarywithin the meaning of this section; and
(2) once a prima facie case of voluntary disclosure is established, theopposing party shall have the burden of rebutting the presumptionrecognized in subsection (a) by a preponderance of the evidence.
(e) Except as provided in this section, this section does not impair theauthority of the appropriate regulatory agency to require technical or remedialaction or to seek injunctive relief.
(f) Immunity provided under this section from administrative or civilpenalties does not apply under any of the following circumstances:
(1) If a facility owner or operator has been found in a civil, criminal oradministrative proceeding to have committed violations in this state thatconstitute a pattern of continuous or repeated violations of environmental lawthat were due to separate and distinct events giving rise to the violationswithin the three-year period prior to the date of disclosure.
(2) If a violation of an environmental law, administrative order or judicialdecree results in a substantial economic benefit to the violator.
(g) In cases where the conditions of a voluntary disclosure are not met, buta good faith effort was made to voluntarily disclose and resolve a violationdetected in an environmental audit, the state regulatory authorities shallconsider the nature and extent of any good faith effort in deciding theappropriate enforcement response and shall consider reducing any administrativeor civil penalties based on mitigating factors showing that one or more of theconditions for voluntary disclosure have been met.
(h) The immunity provided by this section does not abrogate theresponsibility of a person as provided by applicable law to report a violation,to correct the violation, conduct necessary remediation or respond tothird-party actions.
History: L. 1995, ch. 204, § 7;L. 2006, ch. 30, § 6; July 1.
Article 33.--ACTIONS RELATING TO COMMERCIAL ACTIVITY
60-3338.Rebuttable presumption of immunity forvoluntary disclosure ofenvironmental law violation, when; burden of proof; authority to require actionor seek relief; immunity; limitations; good faith effort to voluntarilydisclose violation; abrogation.(a) If any facility owner or operator makes avoluntary disclosure of aviolation of environmentallaws, there shall be arebuttable presumption that the facility owner oroperator is immune from anyadministrative or civil penalties for theviolation disclosed if thedisclosure is one:
(1) Made promptly after knowledge of the information disclosed is obtainedby the facility owner or operator;
(2) made to an agency having regulatory authority with regard to theviolation disclosed before there is notice of a citizen suit or a legalcomplaint by a third party;
(3) arising out of an environmental audit and is related toprivileged information as provided in K.S.A. 60-3334, and amendmentsthereto;
(4) for which the facility owner or operatormaking the disclosure initiates action ina reasonable and diligent manner to resolve the violations identified inthe disclosure; and
(5) in which the facility owner or operator making the disclosure cooperates with theappropriate agency in connection with investigation of the issues identifiedin the disclosure.
(b) A disclosure is not voluntary for purposes of this section if it isrequired by environmental law to be reported to aregulatory authority.
(c) The presumption recognized in subsection (a) may be rebutted andpenalties may be imposed under state law if it is established that:
(1) The disclosure was not voluntary within the meaning of this section;
(2) the violation was committed intentionally and willfully by the facilityowner or operator making the disclosure;
(3) the facility owner or operator did not fullycorrect the violation in a reasonabletime; or
(4) the violation caused serious actual harm or an imminent andsubstantial endangerment to public health or the environment.
(d) In any enforcement action brought against afacility owner or operator regarding aviolation for which the facility owner oroperator claims to have made a voluntarydisclosure within the meaning of this section, the burden of proof concerningvoluntariness of the disclosure shall be allocated as follows:
(1) The facility owner or operator making thevoluntary disclosure claim shall havethe burden of establishing a prima facie case that the disclosure was voluntarywithin the meaning of this section; and
(2) once a prima facie case of voluntary disclosure is established, theopposing party shall have the burden of rebutting the presumptionrecognized in subsection (a) by a preponderance of the evidence.
(e) Except as provided in this section, this section does not impair theauthority of the appropriate regulatory agency to require technical or remedialaction or to seek injunctive relief.
(f) Immunity provided under this section from administrative or civilpenalties does not apply under any of the following circumstances:
(1) If a facility owner or operator has been found in a civil, criminal oradministrative proceeding to have committed violations in this state thatconstitute a pattern of continuous or repeated violations of environmental lawthat were due to separate and distinct events giving rise to the violationswithin the three-year period prior to the date of disclosure.
(2) If a violation of an environmental law, administrative order or judicialdecree results in a substantial economic benefit to the violator.
(g) In cases where the conditions of a voluntary disclosure are not met, buta good faith effort was made to voluntarily disclose and resolve a violationdetected in an environmental audit, the state regulatory authorities shallconsider the nature and extent of any good faith effort in deciding theappropriate enforcement response and shall consider reducing any administrativeor civil penalties based on mitigating factors showing that one or more of theconditions for voluntary disclosure have been met.
(h) The immunity provided by this section does not abrogate theresponsibility of a person as provided by applicable law to report a violation,to correct the violation, conduct necessary remediation or respond tothird-party actions.
History: L. 1995, ch. 204, § 7;L. 2006, ch. 30, § 6; July 1.
Article 33.--ACTIONS RELATING TO COMMERCIAL ACTIVITY
60-3338.Rebuttable presumption of immunity forvoluntary disclosure ofenvironmental law violation, when; burden of proof; authority to require actionor seek relief; immunity; limitations; good faith effort to voluntarilydisclose violation; abrogation.(a) If any facility owner or operator makes avoluntary disclosure of aviolation of environmentallaws, there shall be arebuttable presumption that the facility owner oroperator is immune from anyadministrative or civil penalties for theviolation disclosed if thedisclosure is one:
(1) Made promptly after knowledge of the information disclosed is obtainedby the facility owner or operator;
(2) made to an agency having regulatory authority with regard to theviolation disclosed before there is notice of a citizen suit or a legalcomplaint by a third party;
(3) arising out of an environmental audit and is related toprivileged information as provided in K.S.A. 60-3334, and amendmentsthereto;
(4) for which the facility owner or operatormaking the disclosure initiates action ina reasonable and diligent manner to resolve the violations identified inthe disclosure; and
(5) in which the facility owner or operator making the disclosure cooperates with theappropriate agency in connection with investigation of the issues identifiedin the disclosure.
(b) A disclosure is not voluntary for purposes of this section if it isrequired by environmental law to be reported to aregulatory authority.
(c) The presumption recognized in subsection (a) may be rebutted andpenalties may be imposed under state law if it is established that:
(1) The disclosure was not voluntary within the meaning of this section;
(2) the violation was committed intentionally and willfully by the facilityowner or operator making the disclosure;
(3) the facility owner or operator did not fullycorrect the violation in a reasonabletime; or
(4) the violation caused serious actual harm or an imminent andsubstantial endangerment to public health or the environment.
(d) In any enforcement action brought against afacility owner or operator regarding aviolation for which the facility owner oroperator claims to have made a voluntarydisclosure within the meaning of this section, the burden of proof concerningvoluntariness of the disclosure shall be allocated as follows:
(1) The facility owner or operator making thevoluntary disclosure claim shall havethe burden of establishing a prima facie case that the disclosure was voluntarywithin the meaning of this section; and
(2) once a prima facie case of voluntary disclosure is established, theopposing party shall have the burden of rebutting the presumptionrecognized in subsection (a) by a preponderance of the evidence.
(e) Except as provided in this section, this section does not impair theauthority of the appropriate regulatory agency to require technical or remedialaction or to seek injunctive relief.
(f) Immunity provided under this section from administrative or civilpenalties does not apply under any of the following circumstances:
(1) If a facility owner or operator has been found in a civil, criminal oradministrative proceeding to have committed violations in this state thatconstitute a pattern of continuous or repeated violations of environmental lawthat were due to separate and distinct events giving rise to the violationswithin the three-year period prior to the date of disclosure.
(2) If a violation of an environmental law, administrative order or judicialdecree results in a substantial economic benefit to the violator.
(g) In cases where the conditions of a voluntary disclosure are not met, buta good faith effort was made to voluntarily disclose and resolve a violationdetected in an environmental audit, the state regulatory authorities shallconsider the nature and extent of any good faith effort in deciding theappropriate enforcement response and shall consider reducing any administrativeor civil penalties based on mitigating factors showing that one or more of theconditions for voluntary disclosure have been met.
(h) The immunity provided by this section does not abrogate theresponsibility of a person as provided by applicable law to report a violation,to correct the violation, conduct necessary remediation or respond tothird-party actions.
History: L. 1995, ch. 204, § 7;L. 2006, ch. 30, § 6; July 1.
