(a) The immunity established by this subchapter does not apply and an administrative or civil penalty may be imposed under applicable law if:
(1) the person who made the disclosure intentionally or knowingly committed or was responsible within the meaning of Section 7.02, Penal Code, for the commission of the disclosed violation;
(2) the person who made the disclosure recklessly committed or was responsible within the meaning of Section 7.02, Penal Code, for the commission of the disclosed violation and the violation resulted in substantial injury to one or more persons at the site or off-site harm to persons, property, or the environment;
(3) the offense was committed intentionally or knowingly by a member of the person’s management or an agent of the person and the person’s policies or lack of prevention systems contributed materially to the occurrence of the violation;
(4) the offense was committed recklessly by a member of the person’s management or an agent of the person, the person’s policies or lack of prevention systems contributed materially to the occurrence of the violation, and the violation resulted in substantial injury to one or more persons at the site or off-site harm to persons, property, or the environment; or
(5) the violation has resulted in a substantial economic benefit that gives the violator a clear advantage over its business competitors.
(b) A penalty that is imposed under Subsection (a) should, to the extent appropriate, be mitigated by factors such as:
(1) the voluntariness of the disclosure;
(2) efforts by the disclosing party to conduct environmental or health and safety audits;
(3) remediation;
(4) cooperation with government officials investigating the disclosed violation;
(5) the period of ownership of the regulated facility or operation; or
(6) other relevant considerations.