I

104TH CONGRESS

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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Voluntary Environ5 mental Self-Evaluation Act’’.
2

•HR 1047 IH

1 SEC. 2. FINDINGS.

2 Congress finds that—

3 (1) enhanced and efficient protection of public

4 health and welfare under Federal environmental

5 laws depends principally on voluntary compliance by

6 the general public, rather than enforcement;

7 (2) both a limited privilege from disclosure and

8 a limited expansion of the protection of members of

9 the general public who voluntarily disclose informa10 tion as a result of a voluntary environmental self11 evaluation is necessary to encourage voluntary com12 pliance with Federal environmental laws and to pro13 tect public health and welfare; and

14 (3) the protection referred to in paragraph (2)

15 will not inhibit the carrying out of regulatory au16 thority that is mandatory under Federal environ17 mental laws by officials who are entrusted with the

18 duty of protecting the environment of the United

19 States.

20 SEC. 3. DEFINITIONS.

21 As used in this Act:

22 (1) ADMINISTRATOR.—The term ‘‘Adminis23 trator’’ means the Administrator of the Environ24 mental Protection Agency.

25 (2) ENTITY.—The term ‘‘entity’’ means a unit

26 of State or local government.
3

•HR 1047 IH

1 (3) FEDERAL AGENCY.—The term ‘‘Federal

2 agency’’ has the meaning provided the term ‘‘agen3 cy’’ under section 551 of title 5, United States Code.

4 (4) FEDERAL ENVIRONMENTAL LAW.—The

5 term ‘‘Federal environmental law’’—

6 (A) means—

7 (i) the Federal Insecticide, Fungicide,

8 and Rodenticide Act (7 U.S.C. 136 et

9 seq.);

10 (ii) the Toxic Substances Control Act

11 (15 U.S.C. 2601 et seq.);

12 (iii) the Federal Water Pollution Con13 trol Act (33 U.S.C. 1251 et seq.);

14 (iv) title XIV of the Public Health

15 Service Act (commonly known as the ‘‘Safe

16 Drinking Water Act’’) (42 U.S.C. 300f et

17 seq.);

18 (v) the Solid Waste Disposal Act (42

19 U.S.C. 6901 et seq.);

20 (vi) the Clean Air Act (42 U.S.C.

21 7401 et seq.);

22 (vii) the Comprehensive Environ23 mental Response, Compensation, and Li24 ability Act of 1980 (42 U.S.C. 9601 et

25 seq.);
4

•HR 1047 IH

1 (viii) the Emergency Planning and

2 Community Right-To-Know Act of 1986

3 (42 U.S.C. 11001 et seq.);

4 (ix) the Oil Pollution Act of 1990 (33

5 U.S.C. 2701 et seq.);

6 (x) the Noise Control Act of 1982 (42

7 U.S.C. 4901 et seq.); and

8 (xi) the Pollution Prevention Act of

9 1990 (42 U.S.C. 13101 et seq.);

10 (B) includes any regulation issued under a

11 law listed in subparagraph (A); and

12 (C) includes the terms and conditions of

13 any permit issued under a law listed in sub14 paragraph (A).

15 (5) VOLUNTARY DISCLOSURE.—The term ‘‘vol16 untary disclosure’’ means the disclosure of informa17 tion related to a voluntary environmental self-evalua18 tion with respect to which the protections provided

19 under this Act apply.

20 (6) VOLUNTARY ENVIRONMENTAL SELF-EVAL21 UATION.—The term ‘‘voluntary environmental self22 evaluation’’ means an assessment, audit, investiga23 tion or review that is—

24 (A) initiated by a person or entity;
5

•HR 1047 IH

1 (B) carried out by the person or entity, or

2 a consultant employed by the person or entity,

3 for the express purpose of carrying out the as4 sessment, audit, or review; and

5 (C) carried out to determine whether the

6 person or entity is in compliance with Federal

7 environmental laws (including any permit is8 sued under a Federal environmental law).

9 SEC. 4. ADMISSIBILITY OF REPORTS, FINDINGS, OPINIONS,

10 OR OTHER COMMUNICATIONS.

11 (a) IN GENERAL.—Subject to subsection (b) and not12 withstanding any other provision of law, a report, finding,

13 opinion, or other communication of a person or entity re14 lated to, and essentially constituting a part of, a voluntary

15 environmental self-evaluation that is made in good faith

16 shall not be admissible evidence in any legal action or ad17 ministrative procedure under Federal law and shall not be

18 subject to any discovery procedure under Federal law,

19 unless—

20 (1) the person or entity that initiated the self21 evaluation expressly waives the right of the person

22 or entity to exclude from the evidence or procedure

23 material subject to this section; or

24 (2) after an in camera hearing, the appropriate

25 Federal court determines that—
6

•HR 1047 IH

1 (A)(i) the report, finding, opinion, or other

2 communication indicates noncompliance with a

3 Federal environmental law; and

4 (ii) the person or entity failed to initiate

5 efforts to achieve compliance with the law with6 in a period of time that is reasonable and that

7 is adequate to achieve compliance (including

8 submitting an appropriate permit application);

9 (B) compelling circumstances—

10 (i) make it necessary to admit the en11 vironmental audit report, finding, opinion,

12 or other communication into evidence; or

13 (ii) necessitate that the environmental

14 audit report, finding, opinion, or other

15 communication be subject to discovery pro16 cedures;

17 (C) the person or entity is asserting the

18 applicability of the exclusion under this sub19 section for a fraudulent purpose; or

20 (D) the environmental audit report, find21 ing, opinion, or other communication was pre22 pared for the purpose of avoiding disclosure of

23 information required for an investigative, ad24 ministrative, or judicial proceeding that, at the
7

•HR 1047 IH

1 time of preparation, was imminent or in

2 progress.

3 (b) EXCLUSIONS.—Subsection (a) shall not apply

4 to—

5 (1) a document or other information required to

6 be developed, maintained, or reported pursuant to a

7 Federal environmental law;

8 (2) a document or other information required to

9 be available to a Federal agency or a State agency

10 designated to carry out a regulatory activity pursu11 ant to a Federal environmental law;

12 (3) information obtained by a Federal agency

13 or State agency referred to in paragraph (2) through

14 observation, sampling, or monitoring; or

15 (4) information obtained by a Federal agency

16 or State agency referred to in paragraph (2) through

17 an independent source.

18 SEC. 5. TESTIMONY.

19 Notwithstanding any other provision of law, a person

20 or entity, including any officer or employee of the person

21 or entity, that performs a voluntary environmental self22 evaluation may not be required to give testimony in a Fed23 eral court or an administrative proceeding of a Federal

24 agency without the consent of the person or entity con25 cerning the voluntary environmental self-evaluation, in-
8

•HR 1047 IH

1 cluding an environmental audit report, finding, opinion,

2 or other communication with respect to which section 3(a)

3 applies.

4 SEC. 6. DISCLOSURES.

5 (a) IN GENERAL.—The disclosure of information re6 lating to a Federal environmental law to the appropriate

7 official of a Federal or State agency responsible for admin8 istering a Federal environmental law shall be considered

9 to be a voluntary disclosure if—

10 (1) the disclosure of information arises out of

11 a voluntary environmental self-evaluation;

12 (2) the person or entity that initiates the self13 evaluation—

14 (A) ensures that the disclosure is made

15 promptly after receiving knowledge of the infor16 mation referred to in paragraph (1); and

17 (B) initiates an action to address the is18 sues identified in the disclosure—

19 (i) within a reasonable period of time

20 after receiving knowledge of the informa21 tion; and

22 (ii) within a period of time that is

23 adequate to achieve compliance with the

24 requirements of the Federal environmental

25 law that is the subject of the action (in-
9

•HR 1047 IH

1 cluding submitting an application for an

2 applicable permit); and

3 (3) the person or entity that makes the disclo4 sure provides any further relevant information re5 quested, as a result of the disclosure, by the appro6 priate official of the Federal or State agency respon7 sible for administering the Federal environmental

8 law.

9 (b) INVOLUNTARY DISCLOSURES.—For the purposes

10 of this Act, a disclosure of information to an appropriate

11 official of a Federal or State agency responsible for admin12 istering a Federal environmental law shall not be consid13 ered to be a voluntary disclosure if the person or govern14 ment entity making the disclosure has been found by a

15 Federal or State court to have committed a pattern of sig16 nificant violations of Federal or State laws, or orders on

17 consent, related to environmental quality, due to separate

18 and distinct events giving rise to the violations, during the

19 3-year period prior to the date of disclosure.

20 (c) PRESUMPTION OF APPLICABILITY.—If a person

21 or entity makes a disclosure other than a disclosure re22 ferred to in subsection (b) of a violation of a Federal envi23 ronmental law to an appropriate official of a Federal or

24 State agency responsible for administering the Federal en25 vironmental law—
10

•HR 1047 IH

1 (1) there shall be a presumption that the disclo2 sure is a voluntary disclosure, if the person or entity

3 provides information supporting a claim that the in4 formation is a voluntary disclosure at the time the

5 person or entity makes the disclosure; and

6 (2) until such time as the presumption is rebut7 ted, the person or entity shall be immune from any

8 administrative, civil, or criminal penalty for the vio9 lation.

10 (d) REBUTTAL OF PRESUMPTION.—

11 (1) IN GENERAL.—The head of a Federal or

12 State agency described in subsection (c) shall have

13 the burden of rebutting a presumption established

14 under such subsection. If the head of the Federal or

15 State agency fails to rebut the presumption pursu16 ant to this subsection—

17 (A) the head of the Federal or State agen18 cy may not assess an administrative penalty

19 against a person or entity described in sub20 section (c) with respect to the violation by the

21 person or entity and may not issue a cease and

22 desist order for the violation; and

23 (B) no Federal or State court may assess

24 a civil penalty or criminal negligence penalty

25 against the person or entity for the violation.
11

•HR 1047 IH

1 (2) REBUTTAL.—In order to rebut a presump2 tion referred to in subsection (c), the appropriate of3 ficial of a Federal or State agency responsible for

4 administering the Federal environmental law that is

5 the subject of a violation referred to in such sub6 section shall be required to demonstrate, on the

7 basis of the factors described in subsection (a), and

8 to the satisfaction of the head of the Federal or

9 State agency, that the disclosure is not a voluntary

10 disclosure. If the disclosure is made directly to the

11 head of the Federal or State agency, the head of the

12 Federal or State agency shall apply the factors de13 scribed in subsection (a) in rebutting the presump14 tion. A decision made by the head of the Federal

15 agency under this paragraph shall constitute a final

16 agency action.

17 (e) STATUTORY CONSTRUCTION.—Except as ex18 pressly provided in this section, nothing in this section is

19 intended to affect the authority of a Federal or State

20 agency responsible for administering a Federal environ21 mental law to carry out any requirement of the law associ22 ated with information disclosed in a voluntary disclosure.

Æ