[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1884 Introduced in House (IH)]







105th CONGRESS
  1st Session
                                H. R. 1884

To establish limited privileges and immunities for certain information 
relating to compliance with environmental laws, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             June 12, 1997

  Mr. Hefley introduced the following bill; which was referred to the 
   Committee on the Judiciary, and in addition to the Committees on 
     Commerce, Transportation and Infrastructure, Agriculture, and 
 Resources, 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 establish limited privileges and immunities for certain information 
relating to compliance with environmental laws, 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 Self-
Evaluation Act''.

SEC. 2. DEFINITIONS.

    As used in this Act:
            (1) Federal agency.--The term ``Federal agency'' means any 
        agency (as defined in section 551 of title 5, United States 
        Code) and any agency or instrumentality of an Indian tribe, 
        with authority to administer or enforce any environmental law.
            (2) State agency.--The term ``State agency'' means any 
        agency or instrumentality of the executive branch of a State or 
        local government with authority to administer or enforce any 
        environmental law. The term also includes any agency or 
        instrumentality of 2 or more States or local governments, 
        whether or not the localities are in different States.
            (3) Environmental law.--The term ``environmental law'' 
        means--
                    (A) each of the following Federal laws--
                            (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 Safe Drinking Water Act (title XIV 
                        of the Public Health Service Act; 42 U.S.C. 
                        300f and following);
                            (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 1980 (33 
                        U.S.C. 2701 et seq.);
                            (x) the Noise Control Act of 1982 (42 
                        U.S.C. 4901 et seq.);
                            (xi) the Pollution Prevention Act of 1990 
                        (42 U.S.C. 13101 et seq.);
                            (xii) the Endangered Species Act (16 U.S.C. 
                        1531 et seq.);
                            (xiii) the Surface Mining Control and 
                        Reclamation Act (30 U.S.C. 1201);
                            (xiv) the Rivers and Harbors Act (33 U.S.C. 
                        401-465);
                            (xv) the Hazardous Materials Transportation 
                        Act (49 U.S.C. 1801-1813); and
                            (xvi) any other statute enacted after the 
                        effective date of this Act that addresses the 
                        same or similar subject matter; and
                    (B) any legal requirement in effect in a State 
                under a program delegated to the State under a law 
                listed in subparagraph (A) or which the State is 
                authorized to operate in lieu of a Federal program 
                under a law listed in subparagraph (A).
        Such term includes any regulation or other requirement issued 
        under a law in subparagraph (A) or (B) and the terms and 
        conditions of any permit issued under any such law.
            (4) Voluntary environmental self-evaluation.--The term 
        ``voluntary environmental self-evaluation'' means a periodic 
        and objective review or investigation by an entity of such 
        entity's facility operations and practices related to meeting 
        environmental requirements.
            (5) Environmental compliance management system.--The term 
        ``environmental compliance management system'' means an 
        entity's systematic efforts (other than a voluntary 
        environmental self-evaluation), appropriate to the size and 
        nature of its business, to prevent, detect, and correct 
        violations through all of the following:
                    (A) Compliance policies, standards, and procedures 
                that identify how employees and agents are to meet the 
                requirements of laws, regulations, permits, and other 
                sources of authority for environmental requirements.
                    (B) Assignment of overall responsibility for 
                overseeing compliance with policies, standards, 
                procedures, and assignment of specific responsibility 
                for assuring compliance at each facility or operation.
                    (C) Mechanisms for systematically assuring that 
                compliance policies, standards, and procedures are 
                being carried out, including monitoring systems 
                reasonably designed to detect and correct violations, 
                and a means for employees or agents to report 
                violations of environmental requirements without fear 
                of retaliation.
                    (D) Efforts to communicate effectively the entity's 
                standards and procedures to all employees and other 
                agents.
                    (E) Appropriate incentives to managers and 
                employees to perform in accordance with the compliance 
                policies, standards, and procedures, including 
                consistent enforcement through appropriate disciplinary 
                mechanisms.
                    (F) Procedures for the prompt and appropriate 
                correction of any violations, and any necessary 
                modifications to the entity's program to prevent future 
                violations.
            (6) Voluntary environmental self-evaluation report.--(A) 
        The term ``voluntary environmental self-evaluation report'' 
        means documents prepared as a result of a voluntary 
        environmental self-evaluation. An environmental self-evaluation 
        report shall include any field notes, drafts, memoranda, 
        drawings, photographs, computer software or stored information 
        or electronically recorded information, maps, charts, graphs, 
        surveys, analyses (including laboratory results, instrument 
        readings, and field analyses), or any other information 
        pertaining to observations, findings, opinions, suggestions, or 
        conclusions, if such supporting information is collected or 
        developed for the primary purpose and in the course of the 
        self-evaluation.
            (B) The report may include, but is neither limited to nor 
        required to contain, the following general component parts:
                    (i) A document prepared by the auditor or 
                evaluator, which may describe the scope of the 
                evaluation, the information learned, conclusions and 
                recommendations, and exhibits and appendices.
                    (ii) An analysis of a portion or all of the self-
                evaluation or issues arising therefrom.
                    (iii) An implementation plan or tracking system 
                that addresses actions taken or to be taken by the 
                entity as a result of the self-evaluation.
            (7) Civil proceedings.--The term ``civil proceeding'' 
        includes any administrative or civil judicial proceeding, 
        including those for suspension, or listing.
            (8) Entity.--The term ``entity'' means any partnership, 
        association, or corporation regulated under an environmental 
        law, including any officer, agent, or employee thereof.
            (9) Person.--The term ``person'' includes an individual, 
        corporation, partnership, association, State, municipality, 
        political subdivision of a State and the United States, as well 
        as any agency, instrumentality, officer, agent, or employee 
        thereof.
            (10) State.--The term ``State'' means a State, the District 
        of Columbia, the Commonwealth of Puerto Rico, the Virgin 
        Islands, Guam, American Samoa, and includes the Commonwealth of 
        the Northern Mariana Islands.

SEC. 3. NONDISCLOSURE PRIVILEGE.

    (a) In General.--No information contained in any voluntary 
environmental self-evaluation report, and no testimony relating to a 
voluntary environmental self-evaluation shall be admissible evidence in 
any Federal or State administrative or judicial proceeding under any 
environmental law or subject to discovery in any such proceeding, 
except as otherwise provided in this section.
    (b) Information Not Subject to Privilege.--The privilege under 
subsection (a) shall not apply to--
            (1) any information required to be developed, maintained, 
        or reported pursuant to any environmental law; or
            (2) information with respect to an entity's specific 
        intentional or willful violation of an environmental law.
    (c) Waiver.--Any entity entitled to a privilege of nondisclosure 
under subsection (a) may waive such privilege by means of an express 
written statement specifically describing the information to which such 
waiver applies. No disclosure of information pursuant to a 
confidentiality agreement in a business or financial transaction shall 
be considered to be an express written statement waiving the privileges 
under this section.
    (d) In Camera Hearing.--Whenever any person seeks to obtain any 
information described in subsection (a) from any other entity for use 
in any administrative or judicial proceeding, if such other entity 
refuses to disclose the information on the basis of a privilege under 
subsection (a), the person seeking disclosure may request an 
administrative law judge (in the case of an administrative proceeding) 
or the court (in the case of any civil or criminal proceeding) to 
convene an in camera proceeding to determine the application of the 
privilege. The administrative law judge or the court shall initiate 
such a proceeding and require disclosure of such information to the 
court under seal for purposes of making such determination. In any such 
hearing, the entity asserting the privilege shall have the burden of 
asserting a prima facie basis for the privilege and the person seeking 
disclosure shall have the burden of persuasion that the privilege 
should not apply.
    (e) Civil Proceedings.--The privilege under subsection (a) shall 
not apply in any civil proceeding if the administrative law judge (in 
the case of an administrative proceeding) or the court (in the case of 
a judicial proceeding) determines, in an in camera proceeding under 
subsection (d), that--
            (1) the report, finding, opinion, or other document or 
        communication or testimony indicates noncompliance with an 
        environmental law by such entity, and such entity failed to 
        initiate efforts to achieve compliance with the law within a 
        reasonable period of time in a manner consistent with 
        applicable provisions of law;
            (2) such entity is asserting the applicability of the 
        privilege under this section for a fraudulent purpose; or
            (3) the report was prepared for the purpose of avoiding 
        disclosure of information required for a then pending or 
        imminent specific investigative, administrative, or judicial 
        proceeding of which the entity had actual or constructive 
        knowledge.
Whenever an administrative law judge or a court has ruled under this 
subsection that on the applicability of the privilege to any report, 
finding, opinion, or other document or communication or testimony of 
any entity, such entity or such person, as the case may be, may appeal 
such ruling to the appropriate United States district court (in the 
case of an administrative law judge) or to the appropriate court of 
appeals (in the case of a ruling by a court) and such court shall 
review such ruling and issue a decision on the appeal within 30 days 
after the filing of the appeal.
    (f) Criminal Proceedings.--The privilege under subsection (a) shall 
not apply in any criminal proceeding brought by a Federal or State 
agency if the court, in an in camera hearing, makes any determination 
referred to in subsection (e). A law enforcement official, having 
probable cause (based upon information obtained from a source 
independent of a voluntary environmental self-evaluation report) to 
believe that a criminal offense has been committed under any of the 
covered environmental laws and that the report constitutes evidence of 
such offense, may obtain the report pursuant to a lawful search and 
seizure. However, upon taking possession of the report, the law 
enforcement official shall immediately place it under seal and shall 
not review, disclose or otherwise use the contents of the report in any 
way, unless the person or entity for whom the report was prepared 
expressly waives its protected status pursuant to subsection (c) or the 
court determines that the report is subject to disclosure in an in 
camera hearing under subsection (d). During any such hearing, the court 
shall permit the agency to review, but not to disclose or use the 
information for purposes of any investigation or proceeding.

SEC. 4. IMMUNITY FOR CERTAIN VOLUNTARY DISCLOSURES.

    (a) In General.--Whenever any entity has disclosed to the Federal 
or State agency administering any environmental law information 
relating to the violation by such entity of such environmental law as a 
result of a voluntary environmental self-evaluation performed by such 
entity or an environmental compliance management system used by such 
entity, such entity shall be immune from prosecution in any Federal or 
State administrative, civil, or criminal proceeding regarding such 
violation (other than a criminal proceeding for conduct involving 
specific intent to violate the law), and the information disclosed 
shall not be admissible in any court or administrative proceeding, if--
            (1) such entity (or officer, employee, or agent) ensures 
        that the disclosure is made promptly after receiving knowledge 
        of the information;
            (2) such entity (or officer, employee, or agent) initiates 
        efforts to achieve compliance in a manner consistent with 
        applicable provisions of law of which the entity had actual 
        constructive knowledge;
            (3) such entity (or officer, employee, or agent) is not 
        asserting the applicability of the immunity under this section 
        for a fraudulent purpose;
            (4) such information is not disclosed for the purpose of 
        avoiding penalties in an investigative, administrative, or 
        judicial proceeding that, at the time of disclosure, was 
        imminent or in progress; and
            (5) such entity (or officer, employee, or agent) discloses 
        such other information relating to the violation as the agency 
        concerned reasonably requests, other than information subject 
        to a nondisclosure privilege under section 3 or under any other 
        authority of law.
    (b) Exclusions.--The immunity under subsection (a) shall not apply 
to an entity if the violation concerned is part of a pattern of 
significant violations (counting any multiday occurrence stemming from 
the same cause as a single violation) that has occurred within the past 
3 years at the same facility or at different facilities under the 
common control of an entity whose senior management had actual 
knowledge of the violations and failed to take timely corrective 
action. For purposes of this section, a violation is any violation of 
an environmental law identified in a judicial or administrative order, 
consent agreement or order, conviction, or plea agreement.
    (c) Procedure.--
            (1) Presumption.--Whenever an entity voluntarily discloses 
        to a Federal or State agency information relating to the 
        violation by such entity of an environmental law, if such 
        information was obtained as a result of a voluntary 
        environmental self-evaluation, or from an environmental 
        compliance management system, the entity shall be presumed to 
        be entitled to immunity under this section with respect to such 
        violation if the entity provides information supporting a claim 
        that the entity is qualified for such immunity at the time the 
        entity makes the disclosure. Such presumption shall be 
        conclusive unless challenged by the agency within 60 days of 
        the disclosure.
            (2) Judicial determination.--An entity may request the 
        appropriate United States district court for a determination 
        regarding whether or not the immunity under subsection (a) is 
        applicable to such entity with respect to any violation.

SEC. 5. SAVINGS CLAUSE.

    (a) Authority To Issue Certain Orders.--Nothing in this Act shall 
be construed to affect the authority of a Federal or State agency 
responsible for administering an environmental law to issue a cease and 
desist order or to seek a temporary restraining order or injunction for 
any violation of an environmental law.
    (b) State Privileges and Immunities.--Nothing in this Act shall be 
construed to limit any privilege against disclosure in effect under 
State law. Nothing in this Act shall be construed to limit any immunity 
available to any person under State law.

SEC. 6. EFFECTIVE DATE.

    This Act shall take effect with respect to civil and criminal 
proceedings commenced after the enactment of this Act.
                                 <all>