2006 Kansas Code - 60-3338

      60-3338.   Rebuttable presumption of immunity for voluntary disclosure of environmental law violation, when. (a) If any person or entity makes a voluntary disclosure of a violation of environmental laws, there shall be a rebuttable presumption that the person or entity is immune from any administrative, civil or criminal penalties for the violation disclosed if the disclosure is one:

      (1)   Made promptly after knowledge of the information disclosed is obtained by the person or entity;

      (2)   made to an agency having regulatory authority with regard to the violation disclosed;

      (3)   arising out of an audit;

      (4)   for which the person or entity making the disclosure initiates action in a diligent manner to resolve the violations identified in the disclosure; and

      (5)   in which the person or entity making the disclosure cooperates with the appropriate agency in connection with investigation of the issues identified in the disclosure.

      (b)   A disclosure is not voluntary for purposes of this section if it is required by state law to be reported to a regulatory authority.

      (c)   The presumption recognized in subsection (a) may be rebutted and penalties may be imposed under state law if it is established that:

      (1)   The disclosure was not voluntary within the meaning of this section;

      (2)   the violation was committed intentionally and willfully by the person or entity making the disclosure;

      (3)   the violation was not fully corrected in a diligent manner; or

      (4)   significant environmental harm or a public health threat was caused by the violation.

      (d)   In any enforcement action brought against a person or entity regarding a violation for which the person or entity claims to have made a voluntary disclosure within the meaning of this section, the burden of proof concerning voluntariness of the disclosure shall be allocated as follows:

      (1)   The person or entity making the voluntary disclosure claim shall have the burden of establishing a prima facie case that the disclosure was voluntary within the meaning of this section; and

      (2)   once a prima facie case of voluntary disclosure is established, the opposing party shall have the burden of rebutting the presumption recognized in subsection (a) by a preponderance of the evidence.

      History:   L. 1995, ch. 204, § 7; July 1.