La. Admin. Code tit. 33 § I-7011

Current through Register Vol. 50, No. 8, August 20, 2024

Section I-7011 - New Owner

A. Definitions

1. The following terms used in this Chapter shall have the meanings listed below, unless the context otherwise requires, or unless specifically redefined in a particular Section.

Acquisition Closing Date-the date on which ownership of, or a direct or indirect majority interest in the ownership of a regulated facility or operation is acquired in an asset purchase, equity purchase, merger, or similar transaction.

New Owner-any person not responsible for environmental compliance at the facility that is the subject of the environmental audit, did not cause the violation being disclosed, and could not have prevented the occurrence.

B. The new owner shall comply with all requirements listed in LAC 33:I.7009 except as listed below.

1. The new owner shall notify the department in writing of the intention to continue an audit that was initiated by the previous owner.

2. An audit must be completed within six months after the acquisition closing date, if the new owner continues the audit.

3. Failure to request and receive written approval from the department for an extension of time to complete an audit may forfeit any penalty mitigation.

4. The new owner making the disclosure must certify in the disclosure that all of the following conditions were true before the acquisition closing date.

a. The new owner was not responsible for the environmental compliance at the facility or the operation that is subject to the audit.

b. The new owner did not have the largest ownership share of the seller.

c. The seller did not have the largest ownership share of the new owner.

d. The new owner and seller did not have a common corporate parent or a common majority interest owner.

5. A new owner is eligible for penalty mitigation if the following are met within nine months of the acquisition closing date:

a. prompt disclosure of the violations to the department; and

b. the conditions outlined in LAC 33:I.7011.B.4 are met.

6. The following nine conditions shall be met to be eligible for a 100 percent reduction in penalties.

a. The violation was systematically discovered through an environmental audit.

b. The violation was voluntarily disclosed. The violation was not discovered through a federal, state, or local requirement prescribed by statute, regulation, permit, judicial or administrative order, or a consent agreement.

c. The violation was disclosed to the department in writing within 45 calendar days after discovery, unless an existing law or regulation required disclosure in fewer than 45 calendar days.

d. The violation was independently discovered and identified before the department would have identified the problem either through its investigation or through information from a third party. Discovery and disclosure will not be considered independent if:

i. prompted by the initiation of a department or EPA investigation or request for information;

ii. a notice of a citizen suit filed under federal or state law prior to the notice of an environmental audit;

iii. a third party complaint has been filed; or

iv. a whistleblower has reported the potential violation to the department.

e. The violation was corrected as expeditiously as possible, but no later than 90 calendar days from the date of discovery, unless an extension of time or compliance schedule was approved by the department.

f. The appropriate measures to prevent a recurrence of the violation were implemented after the violation was disclosed to the department.

g. The same or closely related violation has not occurred at the same facility within the past three years.

h. The violation is not excluded as listed in LAC 33:I.7007.A.

i. The owner or operator has cooperated by providing information as necessary and required by the department to determine eligibility.

7. Penalty mitigation will not apply if any of the following are met.

a. The new owner who made the disclosure willingly or knowingly committed the violation or was responsible for the commission of the violation.

b. The new owner who made the disclosure recklessly committed the violation or was responsible for the commission of the disclosed violation and the violation resulted in substantial injury or harm to one or more persons, property, or the environment on-site or off-site.

c. The violation was committed willfully or knowingly by a member of the new owner's management, or an agent of the new owner, and the new owner's policies or lack of prevention systems contributed materially to the occurrence of the violation.

d. The violation was recklessly committed by a member of the new owner's management, by an agent of the new owner, or if the new owner's policies or lack of prevention systems contributed materially to the occurrence of the violation resulting in substantial injury or harm to one or more persons, property, or the environment on-site or off-site.

e. The violation has resulted in a substantial economic benefit that gives the new owner a clear advantage over its business competitors.

La. Admin. Code tit. 33, § I-7011

Promulgated by the Department of Environmental Quality, the Office of the Secretary, Legal Affairs and Criminal Investigations Division, LR 492101 (12/1/2023).

AUTHORITY NOTE: Promulgated in accordance with R.S. 30:2044(C).