South Carolina § 48-57-100 - Voluntary disclosure.

§ 48-57-100. Voluntary disclosure.

(A) If a person or entity makes a voluntary disclosure of an environmental compliance violation of the state's laws, or the federal, regional, or local counterpart or extension of these laws, that person has the burden of proving that the disclosure is voluntary by establishing the elements in Section 48-57-100(B) and that the person is therefore entitled to immunity from any administrative or civil penalties associated with the issues disclosed. Nothing in this section may be construed to provide immunity from criminal penalties.

(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;

(4) the person or entity making the disclosure cooperates with the appropriate agency in connection with investigation of the issues identified in the disclosure; and

(5) the person or entity making the disclosure diligently pursues compliance and promptly corrects the noncompliance within a reasonable time.

(C) A disclosure is not voluntary for purposes of this section if:

(1) specific permit conditions require monitoring or sampling records and reports or assessment plans and management plans to be maintained or submitted to the department pursuant to an established schedule;

(2) specific permit conditions, final departmental orders, or environmental laws require notification of releases to the environment;

(3) the violation was committed intentionally, wilfully, or through criminal negligence by the person or entity making the disclosure;

(4) the violation was not corrected in a diligent manner;

(5) significant environmental harm or a public health threat was caused by the violation;

(6) the violation occurred within one year of a similar prior violation at the same facility and immunity from civil and administrative penalties was granted by the department for the prior violation;

(7) the violation has resulted in a substantial economic benefit which gives the violator a clear economic advantage over its business competitors; or

(8) the violation is a violation of the specific terms of a judicial or administrative order.

(D) If a person meets the burden of proving that the disclosure is voluntary, the burden shifts to the government to prove that the disclosure was not voluntary, based upon the factors set forth in this section. The person claiming immunity under this chapter retains the ultimate burden of proving the voluntariness of the disclosure.

(E) A voluntary disclosure made pursuant to this section is subject to disclosure by the agency pursuant to the South Carolina Freedom of Information Act.

(F) Final waiver of penalties and fines is not granted until full compliance has been certified by the department as occurring in a reasonable time. If full compliance is not certified by the department, the department shall retain discretion to assess penalties based on the department's Uniform Enforcement Policy.

HISTORY: 1996 Act No. 384, SECTION 2; 2000 Act No. 270, SECTION 1.