I
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 Commit-
tee on the Judiciary, and in addition to the Committees on Commerce,
Transportation and Infrastructure, Agriculture, and Resources, for a pe-
riod to be subsequently determined by the Speaker, in each case for con-
sideration of such provisions as fall within the jurisdiction of the commit-
tee 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 Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Voluntary Environ-
mental Self-Evaluation Act’’.
SEC. 2. DEFINITIONS.
As used in this Act:
(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 
Environ-
mental Response, Compensation, and Li-
ability 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 Trans-
portation Act (49 U.S.C. 1801–1813); and
(xvi) any other statute enacted after
the effective date of this Act that address-
es 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 sub-
paragraph (A).
Such term includes any regulation or other require-
ment 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-EVAL-
UATION.—The term ‘‘voluntary environmental self-
evaluation’’ means a periodic and objective review or
investigation by an entity of such entity’s facility op-
erations and practices related to meeting environ-
mental requirements.
(5) ENVIRONMENTAL
COMPLIANCE
MANAGE-
MENT SYSTEM.—The term ‘‘environmental compli-
ance management system’’ means an entity’s sys-
tematic efforts (other than a voluntary environ-
mental 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 au-
thority for environmental requirements.
(B) Assignment of overall responsibility for
overseeing compliance with policies, standards,
procedures, and assignment of specific respon-
sibility for assuring compliance at each facility
or operation.
(C) Mechanisms for systematically assur-
ing that compliance policies, standards, and
procedures are being carried out, including
monitoring systems reasonably designed to de-
tect and correct violations, and a means for em-
ployees or agents to report violations of envi-
ronmental requirements without fear of retalia-
tion.
(D) Efforts to communicate effectively the
entity’s standards and procedures to all employ-
ees and other agents.
(E) Appropriate incentives to managers
and employees to perform in accordance with
the compliance policies, standards, and proce-
dures, including consistent enforcement through
appropriate disciplinary mechanisms.
(F) Procedures for the prompt and appro-
priate correction of any violations, and any nec-
essary modifications to the entity’s program to
prevent future violations.
(6) VOLUNTARY ENVIRONMENTAL SELF-EVAL-
UATION REPORT.—(A) The term ‘‘voluntary environ-
mental self-evaluation report’’ means documents pre-
pared 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 ob-
servations, findings, opinions, suggestions, or conclu-
sions, 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 lim-
ited 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 appen-
dices.
(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-eval-
uation.
(7) CIVIL PROCEEDINGS.—The term ‘‘civil pro-
ceeding’’ 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, instru-
mentality, 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 tes-
timony relating to a voluntary environmental self-evalua-
tion shall be admissible evidence in any Federal or State
administrative or judicial proceeding under any environ-
mental 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 environ-
mental law; or
(2) information with respect to an entity’s spe-
cific intentional or willful violation of an environ-
mental law.
(c) WAIVER.—Any entity entitled to a privilege of
nondisclosure under subsection (a) may waive such privi-
lege 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
(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 prob-
able cause (based upon information obtained from a
source independent of a voluntary environmental self-eval-
uation 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 disclo-
sure in an in camera hearing under subsection (d). During
any such hearing, the court shall permit the agency to re-
view, but not to disclose or use the information for pur-
poses of any investigation or proceeding.
SEC. 4. IMMUNITY FOR CERTAIN VOLUNTARY DISCLO-
SURES.
(a) IN GENERAL.—Whenever any entity has disclosed
to the Federal or State agency administering any environ-
mental 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 admis-
sible 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, ad-
ministrative, 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 vio-
lation as the agency concerned reasonably requests,
other than information subject to a nondisclosure
privilege under section 3 or under any other author-
ity 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 com-
mon 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 volun-
tarily discloses to a Federal or State agency infor-
mation relating to the violation by such entity of an
environmental law, if such information was obtained
as a result of a voluntary environmental self-evalua-
tion, or from an environmental compliance manage-
ment system, the entity shall be presumed to be en-
titled to immunity under this section with respect to
such violation if the entity provides information sup-
porting a claim that the entity is qualified for such
immunity at the time the entity makes the disclo-
sure. Such presumption shall be conclusive unless
challenged by the agency within 60 days of the dis-
closure.
(2) JUDICIAL DETERMINATION.—An entity may
request the appropriate United States district court
for a determination regarding whether or not the im-
munity under subsection (a) is applicable to such en-
tity with respect to any violation.
SEC. 5. SAVINGS CLAUSE.
(a) AUTHORITY TO ISSUE CERTAIN ORDERS.—Noth-
ing 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.
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