II

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.

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 Audit Protection Act’’.
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1 SEC. 2. VOLUNTARY SELF-EVALUATION PROTECTION.

2 (a) IN GENERAL.—Part VI of title 28, United States

3 Code, is amended by adding at the end the following new

4 chapter:

5 ‘‘CHAPTER 179—VOLUNTARY SELF6 EVALUATION PROTECTION

‘‘Sec.

‘‘3801. Admissibility of environmental audit reports.

‘‘3802. Testimony.

‘‘3803. Disclosure to a Federal agency.

‘‘3804. Definitions.

7 ‘‘§ 3801. Admissibility of environmental audit reports

8 ‘‘(a) GENERAL RULE.—

9 ‘‘(1) IN GENERAL.—Except as provided in para10 graphs (2) and (3), an environmental audit report

11 prepared in good faith by a person or government

12 entity related to, and essentially constituting a part

13 of, an environmental audit shall not be subject to

14 discovery and shall not be admitted into evidence in

15 any civil or criminal action or administrative pro16 ceeding before a Federal court or agency or under

17 Federal law.

18 ‘‘(2) EXCLUSIONS.—Paragraph (1) shall not

19 apply to—

20 ‘‘(A) any document, communication, data,

21 report, or other information required to be col22 lected, developed, maintained, or reported to a
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1 regulatory agency pursuant to a covered Fed2 eral law;

3 ‘‘(B) information obtained by observation,

4 sampling, or monitoring by any regulatory

5 agency; or

6 ‘‘(C) information obtained from a source

7 independent of the environmental audit.

8 ‘‘(3) INAPPLICABILITY.—Paragraph (1) shall

9 not apply to an environmental audit report, if—

10 ‘‘(A) the owner or operator of the facility

11 that initiated the environmental audit expressly

12 waives the right of the person or government

13 entity to exclude from the evidence or proceed14 ing material subject to this section;

15 ‘‘(B) after an in camera hearing, the ap16 propriate Federal court determines that—

17 ‘‘(i) the environmental audit report

18 provides evidence of noncompliance with a

19 covered Federal law; and

20 ‘‘(ii) appropriate efforts to achieve

21 compliance were not promptly initiated and

22 pursued with reasonable diligence; or

23 ‘‘(C) the person or government entity is as24 serting the applicability of the exclusion under

25 this subsection for a fraudulent purpose.
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1 ‘‘(b) DETERMINATION OF APPLICABILITY.—The ap2 propriate Federal court shall conduct an in camera review

3 of the report or portion of the report to determine the

4 applicability of subsection (a) to an environmental audit

5 report or portion of a report.

6 ‘‘(c) BURDENS OF PROOF.—

7 ‘‘(1) IN GENERAL.—Except as provided in para8 graph (2), a party invoking the protection of sub9 section (a)(1) shall have the burden of proving the

10 applicability of such subsection including, if there is

11 evidence of noncompliance with an applicable envi12 ronmental law, the burden of proving a prima facie

13 case that appropriate efforts to achieve compliance

14 were promptly initiated and pursued with reasonable

15 diligence.

16 ‘‘(2) WAIVER AND FRAUD.—A party seeking

17 discovery under subparagraph (A) or (C) of sub18 section (b)(3) shall have the burden of proving the

19 existence of a waiver, or that subsection (a)(1) has

20 been invoked for a fraudulent purpose.

21 ‘‘(d) EFFECT ON OTHER RULES.—Nothing in this

22 Act shall limit, waive, or abrogate the scope or nature of

23 any statutory or common law rule regarding discovery or

24 admissibility of evidence, including the attorney-client

25 privilege and the work product doctrine.
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1 ‘‘§ 3802. Testimony

2 ‘‘Notwithstanding any other provision of law, a per3 son or government entity, including any officer or em4 ployee of the person or government entity, that performs

5 an environmental audit may not be required to give testi6 mony in a Federal court or an administrative proceeding

7 of a Federal agency without the consent of the person or

8 government entity concerning the environmental audit, in9 cluding the environmental audit report with respect to

10 which section 3801(a) applies.

11 ‘‘§ 3803. Disclosure to a Federal agency

12 ‘‘(a) IN GENERAL.—The disclosure of information re13 lating to a covered Federal law to the appropriate official

14 of a Federal agency or State agency responsible for admin15 istering a covered Federal law shall be considered to be

16 a voluntary disclosure subject to the protections provided

17 under section 3801, section 3802, and this section if—

18 ‘‘(1) the disclosure of the information arises out

19 of an environmental audit;

20 ‘‘(2) the disclosure is made promptly after the

21 person or government entity that initiates the audit

22 receives knowledge of the information referred to in

23 paragraph (1);

24 ‘‘(3) the person or government entity that initi25 ates the audit initiates an action to address the is26 sues identified in the disclosure—
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1 ‘‘(A) within a reasonable period of time

2 after receiving knowledge of the information;

3 and

4 ‘‘(B) within a period of time that is ade5 quate to achieve compliance with the require6 ments of the covered Federal law that is the

7 subject of the action (including submitting an

8 application for an applicable permit); and

9 ‘‘(4) the person or government entity that

10 makes the disclosure provides any further relevant

11 information requested, as a result of the disclosure,

12 by the appropriate official of the Federal agency re13 sponsible for administering the covered Federal law.

14 ‘‘(b) INVOLUNTARY DISCLOSURES.—For the pur15 poses of this chapter, a disclosure of information to an

16 appropriate official of a Federal agency shall not be con17 sidered to be a voluntary disclosure described in subsection

18 (a) if the person or government entity making the disclo19 sure has been found by a Federal or State court to have

20 committed repeated violations of Federal or State laws,

21 or orders on consent, related to environmental quality, due

22 to separate and distinct events giving rise to the violations,

23 during the 3-year period prior to the date of the disclo24 sure.
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1 ‘‘(c) PRESUMPTION OF APPLICABILITY.—If a person

2 or government entity makes a disclosure, other than a dis3 closure referred to in subsection (b), of a violation of a

4 covered Federal law to an appropriate official of a Federal

5 agency responsible for administering the covered Federal

6 law—

7 ‘‘(1) there shall be a presumption that the dis8 closure is a voluntary disclosure described in sub9 section (a), if the person or government entity pro10 vides information supporting a claim that the infor11 mation is such a voluntary disclosure at the time the

12 person or government entity makes the disclosure;

13 and

14 ‘‘(2) unless the presumption is rebutted, the

15 person or government entity shall be immune from

16 any administrative, civil, or criminal penalty for the

17 violation.

18 ‘‘(d) REBUTTAL OF PRESUMPTION.—

19 ‘‘(1) IN GENERAL.—The head of a Federal

20 agency described in subsection (c) shall have the

21 burden of rebutting a presumption established under

22 such subsection. If the head of the Federal agency

23 fails to rebut the presumption—

24 ‘‘(A) the head of the Federal agency may

25 not assess an administrative penalty against a
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1 person or government entity described in sub2 section (c) with respect to the violation of the

3 person or government entity and may not issue

4 a cease and desist order for the violation; and

5 ‘‘(B) a Federal court may not assess a civil

6 or criminal fine against the person or govern7 ment entity for the violation.

8 ‘‘(2) FINAL AGENCY ACTION.—A decision made

9 by the head of the Federal agency under this sub10 section shall constitute a final agency action.

11 ‘‘(e) STATUTORY CONSTRUCTION.—Except as ex12 pressly provided in this section, nothing in this section is

13 intended to affect the authority of a Federal agency re14 sponsible for administering a covered Federal law to carry

15 out any requirement of the law associated with informa16 tion disclosed in a voluntary disclosure described in sub17 section (a).

18 ‘‘§ 3804. Definitions

19 ‘‘As used in this chapter:

20 ‘‘(1) COVERED FEDERAL LAW.—The term ‘cov21 ered Federal law’—

22 ‘‘(A) means—

23 ‘‘(i) the Federal Insecticide, Fun24 gicide, and Rodenticide Act (7 U.S.C. 136

25 et seq.);
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1 ‘‘(ii) the Toxic Substances Control Act

2 (15 U.S.C. 2601 et seq.);

3 ‘‘(iii) the Federal Water Pollution

4 Control Act (33 U.S.C. 1251 et seq.);

5 ‘‘(iv) the Oil Pollution Act of 1990

6 (33 U.S.C. 2701 et seq.);

7 ‘‘(v) title XIV of the Public Health

8 Service Act (commonly known as the ‘Safe

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

10 seq.);

11 ‘‘(vi) the Noise Control Act of 1972

12 (42 U.S.C. 4901 et seq.);

13 ‘‘(vii) the Solid Waste Disposal Act

14 (42 U.S.C. 6901 et seq.);

15 ‘‘(viii) the Clean Air Act (42 U.S.C.

16 7401 et seq.);

17 ‘‘(ix) the Comprehensive Environ18 mental Response, Compensation, and Li19 ability Act of 1980 (42 U.S.C. 9601 et

20 seq.);

21 ‘‘(x) the Emergency Planning and

22 Community Right-To-Know Act of 1986

23 (42 U.S.C. 11001 et seq.); and

24 ‘‘(xi) the Pollution Prevention Act of

25 1990 (42 U.S.C. 13101 et seq.);
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1 ‘‘(B) includes any regulation issued under

2 a law listed in subparagraph (A); and

3 ‘‘(C) includes the terms and conditions of

4 any permit issued under a law listed in sub5 paragraph (A).

6 ‘‘(2) ENVIRONMENTAL AUDIT.—The term ‘envi7 ronmental audit’ means a voluntary and internal as8 sessment, evaluation, investigation or review of a fa9 cility that is—

10 ‘‘(A) initiated by a person or government

11 entity;

12 ‘‘(B) carried out by the employees of the

13 person or government entity, or a consultant

14 employed by the person or government entity,

15 for the express purpose of carrying out the as16 sessment, evaluation, investigation, or review;

17 and

18 ‘‘(C) carried out to determine whether the

19 person or government entity is in compliance

20 with a covered Federal law.

21 ‘‘(3) ENVIRONMENTAL AUDIT REPORT.—The

22 term ‘environmental audit report’ means any re23 ports, findings, opinions, field notes, records of ob24 servations, suggestions, conclusions, drafts, memo25 randa, drawings, computer generated or electroni-
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1 cally recorded information, maps, charts, graphs,

2 surveys, or other communications associated with an

3 environmental audit.

4 ‘‘(4) FEDERAL AGENCY.—The term ‘Federal

5 agency’ has the meaning provided the term ‘agency’

6 under section 551 of title 5.

7 ‘‘(5) GOVERNMENT ENTITY.—The term ‘gov8 ernment entity’ means a unit of State or local gov9 ernment.’’.

10 (b) TECHNICAL AMENDMENT.—The analysis for part

11 VI of title 28, United States Code, is amended by adding

12 at the end the following:

‘‘179. Voluntary Self-Evaluation Protection ............................ 3801’’.

13 SEC. 3. APPLICABILITY.

14 This Act and the amendment made by this Act shall

15 apply to each Federal civil or criminal action or adminis16 trative proceeding that is commenced after the date of en17 actment of this Act.

Æ