This Fiscal Note is not an official copy and should not be quoted or cited.
Fiscal Note - SB 0529 - Confidentiality & Immun. For Voluntary Environm. Self-Audits
L.R. NO. 2270-01
BILL NO. SB 529
SUBJECT: Environmental Audit Privilege
TYPE: Original
DATE: January 17, 1996
FISCAL SUMMARY
ESTIMATED NET EFFECT ON STATE FUNDS
FUND AFFECTED FY 1997 FY 1998 FY 1999
Total Estimated
Net Effect on All
State Funds $0 $0 $0
ESTIMATED NET EFFECT ON FEDERAL FUNDS
FUND AFFECTED FY 1997 FY 1998 FY 1999
Total Estimated
Net Effect on All
Federal Funds $0 $0 $0
ESTIMATED NET EFFECT ON LOCAL FUNDS
FUND AFFECTED FY 1996 FY 1997 FY 1998
Local Government $0 $0 $0
FISCAL ANALYSIS
ASSUMPTIONS
The Department of Health assumed this proposal would have no fiscal impact.
The Attorney General's Office assumes they would incur additional costs to
hire expert witnesses to replace the information currently available in
environmental audit reports. The AGO estimated their costs would be $23,100
per case for a projected 50 cases annually.
The Department of Natural Resources (DNR) assumes the introduction of this
proposal is an indication there is a certain amount of known non-compliance
with environmental laws. The DNR is not aware of these areas of
non-compliance. The DNR assumes if it were aware of areas of non-compliance
they would be working with the facilities to bring them into compliance, and
non-compliance would not be an issue. However, since the DNR does not know
the population of non-compliance they cannot estimate the increased resources
that would result from this proposal.
The DNR assumes increased enforcement action will be necessary to obtain
compliance information independently or through the courts. The DNR is
unable to determine the additional costs of the anticipated increased
enforcement.
DNR assumes disagreements over whether an audit is privileged will have to be
resolved in court and will increase litigation costs. The DNR is unable to
determine the additional costs of the increased litigation.
The DNR assumes they will be receiving the privileged audit reports for
retention. They expect costs for development of procedures, staff, and
storage facilities, however, the actual costs of the additional resources
needed to receive and retain the audit reports are unknown.
The DNR assumes it would be subject to losing a delegation of authority from
the Environmental Protection Agency, due to the weakening of penalties for
environmental violations. That means Missouri would lose "primacy" in
environmental programs causing citizens and local governments to deal
directly with EPA. The DNR assumes it would also lose federal funding
exceeding $100,000,000.
Based on the February 27, 1995 vote of the Oversight Subcommittee on a
similar proposal, all fiscal impact to state and federal funds have been
removed to reflect a $0 impact.
FISCAL IMPACT - State Government FY 1997 FY 1998 FY 1999
(10 Mo.)
$0 $0 $0
FISCAL IMPACT - Local Government FY 1997 FY 1998 FY 1999
(10 Mo.)
$0 $0 $0
DESCRIPTION
This proposal creates an environmental audit privilege to protect the
confidentiality of communications relating to voluntary internal
environmental audits. This proposal would make environmental audit reports
inadmissible as legal evidence in civil, criminal, or administrative
proceedings. The act also provides immunity from penalties for voluntarily
disclosed environmental violations meeting certain conditions. The privilege
would not apply to data collected as required by law, or to data which had
been collected by a regulatory agency or independent source.
The privilege shall not apply when the privilege has been waived. A judicial
body may require disclosure of otherwise privileged information if it is
determined the privilege is being asserted fraudulently, the material is not
subject to the privilege, or the material shows the party asserting privilege
did not exercise ordinary care to pursue compliance upon discovery of
noncompliance with environmental laws. The state may obtain an audit report
if the state has determined from an independent source that a criminal
offense has been committed, but may not review or disclose the content of the
report until ordered by a court or until the privilege is waived.
The act provides conditions for disclosure of a privileged report in civil
and administrative cases, and provides for appeal of a civil or
administrative disclosure decision by an aggrieved party. Public employee or
official divulging privileged information would be guilty of a misdemeanor.
This legislation is not federally mandated, would not duplicate any other
program and would not require additional capital improvements or rental
space.
SOURCES OF INFORMATION
Missouri Department of Natural Resources
Missouri Department of Health
Office of the Attorney General