Font size:
Representative Howard Wetters is the Democratic state representative for Michigan’s 97th district which encompasses Bay City and northern Bay County. His committee appointments include Agriculture and Forestry, Tax Policy, and Conservation, Environment and Great Lakes.
Representative Wetters, could you introduce our readers to Michigan’s new Environmental Audit Privilege and Immunity Act?
In simple terms, Michigan businesses are now allowed to conduct their own environmental examinations. The concept behind the act is that businesses who are good actors, who want to do the right thing, and who are willing to report their own violations of Michigan’s environmental law, should be rewarded for that kind of positive activity. By allowing people to correct environmental problems, in a timely manner, without being fined or punished, you effectively subsidize the voluntary stewardship of our environment. I consider the Environmental Audit Privilege & Immunity Law one of finest accomplishments of the 1995-1996 legislative session.
By al lowing people to correct environmental problems, in a timely manner, without being fined or punished, you effectively subsidize the voluntary stewardship of our environment.
Please give me a hypothetical example of how it would work.
Suppose a small manufacturing plant must generate waste products (such as degreasers and solvents) as part of their their daily operation. The company, being environmentally sensitive, conducts an examination of itself and discovers that it is not in compliance with the environmental code of Michigan. The company would conduct an audit, correct the situation and then submit a report to the DEQ.
Why did the legislature choose to encourage voluntary cooperation with businesses, municipalities, and public agencies, as it relates to environmental audits, versus the now-common approach of government mandates?
The legislature certainly discussed the mandates versus voluntary approach. I can assure you there was not, and is not, universal agreement within the legislature as to private, voluntary environmental audits. There was a tremendous amount of debate over this issue; however, in the end, the legislature endorsed this new practice of encouraging people, government, and businesses to do the right thing.
We believe that this law will sort out those businesses who will willingly comply with environmental laws. This has several important aspects. First, it allows 60, 70, or 80 percent of people who will voluntarily comply with the law to do so without fear of punishment. It also allows the enforcement people within the Department of Environmental Quality (DEQ) to focus their efforts on the people and businesses who are not following the law.
Has this legislation been tried elsewhere?
Yes. Approximately ten or twelve other states have already adopted some sort of environmental audit legislation or are in the process of considering it in their legislature. I think that by the time we finished there were as many as twenty states where it had been introduced.
What type of track record does it have?
There are no long-term reviews yet. This concept is too new. I would instead try to compare it to agriculture. The audit legislation is the type of enforcement activity that I saw the Michigan Department of Agriculture carry on for years. Their ethic has been "Our first job is to make sure that the food supply is safe. We’re not so concerned with punishing people, we just want to make sure the product is safe." I believe that the environmental audit legislation is much more akin to that type of philosophy.
We want to make sure the environment is cleaned up. We’re more interested in that, than in simply punishing people. I think that philosophy, as I’ve seen it in agriculture, has been a far more successful way of enforcing and regulating than through the adversarial process we have used to enforce environmental laws.
What implications does this have for local units of government? Are they treated differently than businesses?
In some ways, they are treated differently. Government agencies don’t really have the same total immunity that private businesses enjoy. It is based upon the fact that they’re public as opposed to private entities. Businesses that do audits may keep the results private. They are granted an "immunity" from disclosure. Local units of government, although they enjoy the same privilege of voluntary self-audit, are still subject to freedom of information requests and the open meetings act. These are powerful tools that are designed so the public may have more access to the decision making process of local government.
Will people and corporations with previous violations of environmental regulation be permitted to conduct voluntary audits?
Yes. The fact that someone has had a violation in the past does not preclude them from using environmental audit. If they do an audit, and discover a problem, they must report it. If I am running a business and I make a mistake, report it, and correct the mistake then there is "no harm, no foul." On the other hand, if I knowingly pollute, or there is a pattern of violations, I provide the DEQ with cause to challenge both immunity and privilege protections.
Does immunity affect the person’s or corporation’s responsibility to correct violations and pay for damages?
In a certain way it does effect the correction of violations. The immunity law establishes time frames that a firm or government entity has to correct violations. A small spill on a site should be cleaned up in a shorter period of time than, for example, a large contamination that was moving underground. It’s simply a matter of what can be reasonably expected. In terms of prosecution, it dramatically impacts responsibility in the sense that, if a violating business or government entity fully complies with the tenets of the new law, the state will not prosecute.
Some environmental groups have opposed the Environmental Audit Privilege & Immunity law. Their position is "Why do polluters need privilege if they are going to be immune from prosecution? What is the need for keeping their violations secret?" Can you comment?
One reason is that our environmental laws allow for third-party lawsuits. This has happened in Michigan where companies have come to an agreement with the old Department of Natural Resources (now DEQ) about a problem, and then third-party interveners have, in fact, used those agreements to pursue large volumes of information, which have then been used to pursue lawsuits against those companies. It’s important to remember that environmental groups have a self-interest in being able to gather privileged information.
Is the new immunity law one that could be abused? Yes. However, I don’t think it will be because many companies are already doing environmental audits successfully. If they report all the violations, and they’re cleaned up, I don’t see any reason that the companies shouldn’t be allowed to keep the violation secret. Even then, I don’t know if it’s keeping them secret, or if it’s not forcing them to go through the agony of a long, protracted debate about having actually done the right thing.
The law waives penalties for criminal negligence. If you break any other law, you face penalties, but not if you break an environmental law?
You have to look at the environmental laws to see what "criminal" is. Technically, any time you are in violation of environmental laws it can be a criminal violation.
I don’t have a problem with the state providing immunity from prosecution, provided violating parties have complied with the immunity law. In doing so, they must perform a self-audit, disclose any problems to the DEQ, and take steps to correct those problems in a reasonable time.
By allowing people to voluntarily provide environmental stewardship, people, business, and government may all be better for it.
Let me close by saying that the DEQ doesn’t have the manpower to visit every site in Michigan that may or may not have some environmental violation. Many sites may be cleaned up through an environmental audit process where DEQ would have never known there was any contamination. By allowing people to voluntarily provide environmental stewardship, people, business, and government may all be better for it.
Editor’s Note: If you have any questions or comments about the Environmental Audit Privilege & Immunity law, you may telephone the DEQ Environmental Assistance Center toll-free at 1-800-662-9278. The DEQ also maintains a Web site that may be accessed at http://www.deq.state.mi.us
