[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 582 Introduced in Senate (IS)]







104th CONGRESS
  1st Session
                                 S. 582

    To amend title 28, United States Code, to provide that certain 
voluntary disclosures of violations of Federal laws made pursuant to an 
environmental audit shall not be subject to discovery or admitted into 
 evidence during a Federal judicial or administrative proceeding, and 
                          for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

               March 21 (legislative day, March 16), 1995

Mr. Hatfield (for himself and Mr. Brown) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
    To amend title 28, United States Code, to provide that certain 
voluntary disclosures of violations of Federal laws made pursuant to an 
environmental audit shall not be subject to discovery or admitted into 
 evidence during a Federal judicial or administrative proceeding, and 
                          for other purposes.

    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 Audit 
Protection Act''.

SEC. 2. VOLUNTARY SELF-EVALUATION PROTECTION.

    (a) In General.--Part VI of title 28, United States Code, is 
amended by adding at the end the following new chapter:

          ``CHAPTER 179--VOLUNTARY SELF-EVALUATION PROTECTION

``Sec.
``3801. Admissibility of environmental audit reports.
``3802. Testimony.
``3803. Disclosure to a Federal agency.
``3804. Definitions.
``Sec. 3801. Admissibility of environmental audit reports
    ``(a) General Rule.--
            ``(1) In general.--Except as provided in paragraphs (2) and 
        (3), an environmental audit report prepared in good faith by a 
        person or government entity related to, and essentially 
        constituting a part of, an environmental audit shall not be 
        subject to discovery and shall not be admitted into evidence in 
        any civil or criminal action or administrative proceeding 
        before a Federal court or agency or under Federal law.
            ``(2) Exclusions.--Paragraph (1) shall not apply to--
                    ``(A) any document, communication, data, report, or 
                other information required to be collected, developed, 
                maintained, or reported to a regulatory agency pursuant 
                to a covered Federal law;
                    ``(B) information obtained by observation, 
                sampling, or monitoring by any regulatory agency; or
                    ``(C) information obtained from a source 
                independent of the environmental audit.
            ``(3) Inapplicability.--Paragraph (1) shall not apply to an 
        environmental audit report, if--
                    ``(A) the owner or operator of the facility that 
                initiated the environmental audit expressly waives the 
                right of the person or government entity to exclude 
                from the evidence or proceeding material subject to 
                this section;
                    ``(B) after an in camera hearing, the appropriate 
                Federal court determines that--
                            ``(i) the environmental audit report 
                        provides evidence of noncompliance with a 
                        covered Federal law; and
                            ``(ii) appropriate efforts to achieve 
                        compliance were not promptly initiated and 
                        pursued with reasonable diligence; or
                    ``(C) the person or government entity is asserting 
                the applicability of the exclusion under this 
                subsection for a fraudulent purpose.
    ``(b) Determination of Applicability.--The appropriate Federal 
court shall conduct an in camera review of the report or portion of the 
report to determine the applicability of subsection (a) to an 
environmental audit report or portion of a report.
    ``(c) Burdens of Proof.--
            ``(1) In general.--Except as provided in paragraph (2), a 
        party invoking the protection of subsection (a)(1) shall have 
        the burden of proving the applicability of such subsection 
        including, if there is evidence of noncompliance with an 
        applicable environmental law, the burden of proving a prima 
        facie case that appropriate efforts to achieve compliance were 
        promptly initiated and pursued with reasonable diligence.
            ``(2) Waiver and fraud.--A party seeking discovery under 
        subparagraph (A) or (C) of subsection (b)(3) shall have the 
        burden of proving the existence of a waiver, or that subsection 
        (a)(1) has been invoked for a fraudulent purpose.
    ``(d) Effect on Other Rules.--Nothing in this Act shall limit, 
waive, or abrogate the scope or nature of any statutory or common law 
rule regarding discovery or admissibility of evidence, including the 
attorney-client privilege and the work product doctrine.
``Sec. 3802. Testimony
    ``Notwithstanding any other provision of law, a person or 
government entity, including any officer or employee of the person or 
government entity, that performs an environmental audit 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 
government entity concerning the environmental audit, including the 
environmental audit report with respect to which section 3801(a) 
applies.
``Sec. 3803. Disclosure to a Federal agency
    ``(a) In General.--The disclosure of information relating to a 
covered Federal law to the appropriate official of a Federal agency or 
State agency responsible for administering a covered Federal law shall 
be considered to be a voluntary disclosure subject to the protections 
provided under section 3801, section 3802, and this section if--
            ``(1) the disclosure of the information arises out of an 
        environmental audit;
            ``(2) the disclosure is made promptly after the person or 
        government entity that initiates the audit receives knowledge 
        of the information referred to in paragraph (1);
            ``(3) the person or government entity that initiates the 
        audit initiates an action to address the issues identified in 
        the disclosure--
                    ``(A) within a reasonable period of time after 
                receiving knowledge of the information; and
                    ``(B) within a period of time that is adequate to 
                achieve compliance with the requirements of the covered 
                Federal law that is the subject of the action 
                (including submitting an application for an applicable 
                permit); and
            ``(4) the person or government entity that makes the 
        disclosure provides any further relevant information requested, 
        as a result of the disclosure, by the appropriate official of 
        the Federal agency responsible for administering the covered 
        Federal law.
    ``(b) Involuntary Disclosures.--For the purposes of this chapter, a 
disclosure of information to an appropriate official of a Federal 
agency shall not be considered to be a voluntary disclosure described 
in subsection (a) if the person or government entity making the 
disclosure has been found by a Federal or State court to have committed 
repeated 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 the disclosure.
    ``(c) Presumption of Applicability.--If a person or government 
entity makes a disclosure, other than a disclosure referred to in 
subsection (b), of a violation of a covered Federal law to an 
appropriate official of a Federal agency responsible for administering 
the covered Federal law--
            ``(1) there shall be a presumption that the disclosure is a 
        voluntary disclosure described in subsection (a), if the person 
        or government entity provides information supporting a claim 
        that the information is such a voluntary disclosure at the time 
        the person or government entity makes the disclosure; and
            ``(2) unless the presumption is rebutted, the person or 
        government 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 agency described 
        in subsection (c) shall have the burden of rebutting a 
        presumption established under such subsection. If the head of 
        the Federal agency fails to rebut the presumption--
                    ``(A) the head of the Federal agency may not assess 
                an administrative penalty against a person or 
                government entity described in subsection (c) with 
                respect to the violation of the person or government 
                entity and may not issue a cease and desist order for 
                the violation; and
                    ``(B) a Federal court may not assess a civil or 
                criminal fine against the person or government entity 
                for the violation.
            ``(2) Final agency action.--A decision made by the head of 
        the Federal agency under this subsection 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 agency responsible for administering a covered Federal law to 
carry out any requirement of the law associated with information 
disclosed in a voluntary disclosure described in subsection (a).
``Sec. 3804. Definitions
    ``As used in this chapter:
            ``(1) Covered federal law.--The term `covered Federal 
        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) the Oil Pollution Act of 1990 (33 
                        U.S.C. 2701 et seq.);
                            ``(v) title XIV of the Public Health 
                        Service Act (commonly known as the `Safe 
                        Drinking Water Act') (42 U.S.C. 300f et seq.);
                            ``(vi) the Noise Control Act of 1972 (42 
                        U.S.C. 4901 et seq.);
                            ``(vii) the Solid Waste Disposal Act (42 
                        U.S.C. 6901 et seq.);
                            ``(viii) the Clean Air Act (42 U.S.C. 7401 
                        et seq.);
                            ``(ix) the Comprehensive Environmental 
                        Response, Compensation, and Liability Act of 
                        1980 (42 U.S.C. 9601 et seq.);
                            ``(x) the Emergency Planning and Community 
                        Right-To-Know Act of 1986 (42 U.S.C. 11001 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).
            ``(2) Environmental audit.--The term `environmental audit' 
        means a voluntary and internal assessment, evaluation, 
        investigation or review of a facility that is--
                    ``(A) initiated by a person or government entity;
                    ``(B) carried out by the employees of the person or 
                government entity, or a consultant employed by the 
                person or government entity, for the express purpose of 
                carrying out the assessment, evaluation, investigation, 
                or review; and
                    ``(C) carried out to determine whether the person 
                or government entity is in compliance with a covered 
                Federal law.
            ``(3) Environmental audit report.--The term `environmental 
        audit report' means any reports, findings, opinions, field 
        notes, records of observations, suggestions, conclusions, 
        drafts, memoranda, drawings, computer generated or 
        electronically recorded information, maps, charts, graphs, 
        surveys, or other communications associated with an 
        environmental audit.
            ``(4) Federal agency.--The term `Federal agency' has the 
        meaning provided the term `agency' under section 551 of title 
        5.
            ``(5) Government entity.--The term `government entity' 
        means a unit of State or local government.''.
    (b) Technical Amendment.--The analysis for part VI of title 28, 
United States Code, is amended by adding at the end the following:

``179. Voluntary Self-Evaluation Protection.................    3801''.

SEC. 3. APPLICABILITY.

    This Act and the amendment made by this Act shall apply to each 
Federal civil or criminal action or administrative proceeding that is 
commenced after the date of enactment of this Act.
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