[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1047 Introduced in House (IH)]

  1st Session
                                H. R. 1047

  To provide under Federal law a limited privilege from disclosure of 
  certain information acquired pursuant to a voluntary environmental 
self-evaluation and, if such information is voluntarily disclosed, for 
                    limited immunity from penalties.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           February 24, 1995

Mr. Hefley (for himself, Mr. Hyde, Mr. Schaefer, Mr. Crapo, Mr. Allard, 
  Mr. DeLay, and Mr. Young of Alaska) introduced the following bill; 
which was referred to the Committee on the Judiciary and, in addition, 
 to the Committees on Commerce, Transportation and Infrastructure, and 
Agriculture, for a period to be subsequently determined by the Speaker, 
 in each case for consideration of such provisions as fall within the 
                jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
  To provide under Federal law a limited privilege from disclosure of 
  certain information acquired pursuant to a voluntary environmental 
self-evaluation and, if such information is voluntarily disclosed, for 
                    limited immunity from penalties.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Voluntary Environmental Self-
Evaluation Act''.

SEC. 2. FINDINGS.

    Congress finds that--
            (1) enhanced and efficient protection of public health and 
        welfare under Federal environmental laws depends principally on 
        voluntary compliance by the general public, rather than 
        enforcement;
            (2) both a limited privilege from disclosure and a limited 
        expansion of the protection of members of the general public 
        who voluntarily disclose information as a result of a voluntary 
        environmental self-evaluation is necessary to encourage 
        voluntary compliance with Federal environmental laws and to 
        protect public health and welfare; and
            (3) the protection referred to in paragraph (2) will not 
        inhibit the carrying out of regulatory authority that is 
        mandatory under Federal environmental laws by officials who are 
        entrusted with the duty of protecting the environment of the 
        United States.

SEC. 3. DEFINITIONS.

    As used in this Act:
            (1) Administrator.--The term ``Administrator'' means the 
        Administrator of the Environmental Protection Agency.
            (2) Entity.--The term ``entity'' means a unit of State or 
        local government.
            (3) Federal agency.--The term ``Federal agency'' has the 
        meaning provided the term ``agency'' under section 551 of title 
        5, United States Code.
            (4) Federal environmental law.--The term ``Federal 
        environmental law''--
                    (A) means--
                            (i) the Federal Insecticide, Fungicide, and 
                        Rodenticide Act (7 U.S.C. 136 et seq.);
                            (ii) the Toxic Substances Control Act (15 
                        U.S.C. 2601 et seq.);
                            (iii) the Federal Water Pollution Control 
                        Act (33 U.S.C. 1251 et seq.);
                            (iv) title XIV of the Public Health Service 
                        Act (commonly known as the ``Safe Drinking 
                        Water Act'') (42 U.S.C. 300f et seq.);
                            (v) the Solid Waste Disposal Act (42 U.S.C. 
                        6901 et seq.);
                            (vi) the Clean Air Act (42 U.S.C. 7401 et 
                        seq.);
                            (vii) the Comprehensive Environmental 
                        Response, Compensation, and Liability Act of 
                        1980 (42 U.S.C. 9601 et seq.);
                            (viii) the Emergency Planning and Community 
                        Right-To-Know Act of 1986 (42 U.S.C. 11001 et 
                        seq.);
                            (ix) the Oil Pollution Act of 1990 (33 
                        U.S.C. 2701 et seq.);
                            (x) the Noise Control Act of 1982 (42 
                        U.S.C. 4901 et seq.); and
                            (xi) the Pollution Prevention Act of 1990 
                        (42 U.S.C. 13101 et seq.);
                    (B) includes any regulation issued under a law 
                listed in subparagraph (A); and
                    (C) includes the terms and conditions of any permit 
                issued under a law listed in subparagraph (A).
            (5) Voluntary disclosure.--The term ``voluntary 
        disclosure'' means the disclosure of information related to a 
        voluntary environmental self-evaluation with respect to which 
        the protections provided under this Act apply.
            (6) Voluntary environmental self-evaluation.--The term 
        ``voluntary environmental self-evaluation'' means an 
        assessment, audit, investigation or review that is--
                    (A) initiated by a person or entity;
                    (B) carried out by the person or entity, or a 
                consultant employed by the person or entity, for the 
                express purpose of carrying out the assessment, audit, 
                or review; and
                    (C) carried out to determine whether the person or 
                entity is in compliance with Federal environmental laws 
                (including any permit issued under a Federal 
                environmental law).

SEC. 4. ADMISSIBILITY OF REPORTS, FINDINGS, OPINIONS, OR OTHER 
              COMMUNICATIONS.

    (a) In General.--Subject to subsection (b) and notwithstanding any 
other provision of law, a report, finding, opinion, or other 
communication of a person or entity related to, and essentially 
constituting a part of, a voluntary environmental self-evaluation that 
is made in good faith shall not be admissible evidence in any legal 
action or administrative procedure under Federal law and shall not be 
subject to any discovery procedure under Federal law, unless--
            (1) the person or entity that initiated the self-evaluation 
        expressly waives the right of the person or entity to exclude 
        from the evidence or procedure material subject to this 
        section; or
            (2) after an in camera hearing, the appropriate Federal 
        court determines that--
                    (A)(i) the report, finding, opinion, or other 
                communication indicates noncompliance with a Federal 
                environmental law; and
                    (ii) the person or entity failed to initiate 
                efforts to achieve compliance with the law within a 
                period of time that is reasonable and that is adequate 
                to achieve compliance (including submitting an 
                appropriate permit application);
                    (B) compelling circumstances--
                            (i) make it necessary to admit the 
                        environmental audit report, finding, opinion, 
                        or other communication into evidence; or
                            (ii) necessitate that the environmental 
                        audit report, finding, opinion, or other 
                        communication be subject to discovery 
                        procedures;
                    (C) the person or entity is asserting the 
                applicability of the exclusion under this subsection 
                for a fraudulent purpose; or
                    (D) the environmental audit report, finding, 
                opinion, or other communication was prepared for the 
                purpose of avoiding disclosure of information required 
                for an investigative, administrative, or judicial 
                proceeding that, at the time of preparation, was 
imminent or in progress.
    (b) Exclusions.--Subsection (a) shall not apply to--
            (1) a document or other information required to be 
        developed, maintained, or reported pursuant to a Federal 
        environmental law;
            (2) a document or other information required to be 
        available to a Federal agency or a State agency designated to 
        carry out a regulatory activity pursuant to a Federal 
        environmental law;
            (3) information obtained by a Federal agency or State 
        agency referred to in paragraph (2) through observation, 
        sampling, or monitoring; or
            (4) information obtained by a Federal agency or State 
        agency referred to in paragraph (2) through an independent 
        source.

SEC. 5. TESTIMONY.

    Notwithstanding any other provision of law, a person or entity, 
including any officer or employee of the person or entity, that 
performs a voluntary environmental self-evaluation may not be required 
to give testimony in a Federal court or an administrative proceeding of 
a Federal agency without the consent of the person or entity concerning 
the voluntary environmental self-evaluation, including an environmental 
audit report, finding, opinion, or other communication with respect to 
which section 3(a) applies.

SEC. 6. DISCLOSURES.

    (a) In General.--The disclosure of information relating to a 
Federal environmental law to the appropriate official of a Federal or 
State agency responsible for administering a Federal environmental law 
shall be considered to be a voluntary disclosure if--
            (1) the disclosure of information arises out of a voluntary 
        environmental self-evaluation;
            (2) the person or entity that initiates the self-
        evaluation--
                    (A) ensures that the disclosure is made promptly 
                after receiving knowledge of the information referred 
                to in paragraph (1); and
                    (B) initiates an action to address the issues 
                identified in the disclosure--
                            (i) within a reasonable period of time 
                        after receiving knowledge of the information; 
                        and
                            (ii) within a period of time that is 
                        adequate to achieve compliance with the 
                        requirements of the Federal environmental law 
                        that is the subject of the action (including 
                        submitting an application for an applicable 
                        permit); and
            (3) the person or entity that makes the disclosure provides 
        any further relevant information requested, as a result of the 
        disclosure, by the appropriate official of the Federal or State 
        agency responsible for administering the Federal environmental 
        law.
    (b) Involuntary Disclosures.--For the purposes of this Act, a 
disclosure of information to an appropriate official of a Federal or 
State agency responsible for administering a Federal environmental law 
shall not be considered to be a voluntary disclosure if the person or 
government entity making the disclosure has been found by a Federal or 
State court to have committed a pattern of significant violations of 
Federal or State laws, or orders on consent, related to environmental 
quality, due to separate and distinct events giving rise to the 
violations, during the 3-year period prior to the date of disclosure.
    (c) Presumption of Applicability.--If a person or entity makes a 
disclosure other than a disclosure referred to in subsection (b) of a 
violation of a Federal environmental law to an appropriate official of 
a Federal or State agency responsible for administering the Federal 
environmental law--
            (1) there shall be a presumption that the disclosure is a 
        voluntary disclosure, if the person or entity provides 
        information supporting a claim that the information is a 
        voluntary disclosure at the time the person or entity makes the 
        disclosure; and
            (2) until such time as the presumption is rebutted, the 
        person or entity shall be immune from any administrative, 
        civil, or criminal penalty for the violation.
    (d) Rebuttal of Presumption.--
            (1) In general.--The head of a Federal or State agency 
        described in subsection (c) shall have the burden of rebutting 
        a presumption established under such subsection. If the head of 
        the Federal or State agency fails to rebut the presumption 
        pursuant to this subsection--
                    (A) the head of the Federal or State agency may not 
                assess an administrative penalty against a person or 
                entity described in subsection (c) with respect to the 
                violation by the person or entity and may not issue a 
                cease and desist order for the violation; and
                    (B) no Federal or State court may assess a civil 
                penalty or criminal negligence penalty against the 
                person or entity for the violation.
            (2) Rebuttal.--In order to rebut a presumption referred to 
        in subsection (c), the appropriate official of a Federal or 
        State agency responsible for administering the Federal 
        environmental law that is the subject of a violation referred 
        to in such subsection shall be required to demonstrate, on the 
        basis of the factors described in subsection (a), and to the 
        satisfaction of the head of the Federal or State agency, that 
        the disclosure is not a voluntary disclosure. If the disclosure 
        is made directly to the head of the Federal or State agency, 
        the head of the Federal or State agency shall apply the factors 
        described in subsection (a) in rebutting the presumption. A 
        decision made by the head of the Federal agency under this 
        paragraph shall constitute a final agency action.
    (e) Statutory Construction.--Except as expressly provided in this 
section, nothing in this section is intended to affect the authority of 
a Federal or State agency responsible for administering a Federal 
environmental law to carry out any requirement of the law associated 
with information disclosed in a voluntary disclosure.
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