Environmental Audit Privilege & Immunity

  • Environmental Audit Privilege & Immunity

    Michigan recognizes the importance of businesses, municipalities and public agencies that take initiative in evaluating their environmental compliance. To encourage self-evaluation, Part 148 of Michigan’s Natural Resources and Environmental Protection Act (NREPA) gives organizations incentive to conduct and disclose the results of environmental audits by offering special protections and immunities against violation, fines, and penalties.

    Environmental audits are voluntary, internal evaluations of a facility regulated by environmental laws aiming to:

    • identify past or current noncompliance
    • prevent noncompliance or improve compliance
    • identify an existing or potential hazard, contamination, or adverse environmental condition
    • improve an environmental management system or process

    Environmental audit reports are resulting documents, which include all relevant information about the audit. Information must be included in the audit report to be eligible for confidentiality and immunity. The audit report may also include an implementation plan that corrects past noncompliance, improves existing compliance management systems, or prevents future noncompliance.

    Part 148 contains two major provisions:

    • Establishes limited privilege status for an environmental audit. This means that certain information contained in the environmental audit report can be held confidential (privileged) and is not accessible to a state or local government agency or the public.
    • Provides immunity from state administrative or civil fines and penalties and certain criminal penalties and fines for negligent acts or omissions (except in the case of gross negligence) for violations that are discovered through an environmental audit, provided they are voluntarily and promptly corrected and disclosed to the appropriate agencies.

    Not all t ...