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-evalua-
tion 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. AL-
LARD, Mr. DELAY, and Mr. YOUNG of Alaska) introduced the following
bill; which was referred to the Committee on the Judiciary and, in addi-
tion, to the Committees on Commerce, Transportation and Infrastruc-
ture, 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 disclo-
sure of certain information acquired pursuant to a vol-
untary environmental self-evaluation and, if such infor-
mation is voluntarily disclosed, for limited immunity from
penalties.
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’’.
(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 1990 (33
U.S.C. 2701 et seq.);
(x) the Noise Control Act of 1982 (42
U.S.C. 4901 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 sub-
paragraph (A).
(5) VOLUNTARY DISCLOSURE.—The term ‘‘vol-
untary disclosure’’ means the disclosure of informa-
tion related to a voluntary environmental self-evalua-
tion with respect to which the protections provided
under this Act apply.
(6) VOLUNTARY ENVIRONMENTAL SELF-EVAL-
UATION.—The term ‘‘voluntary environmental self-
evaluation’’ means an assessment, audit, investiga-
tion or review that is—
(A) initiated by a person or entity;
(B) carried out by the person or entity, or
a consultant employed by the person or entity,
for the express purpose of carrying out the as-
sessment, audit, or review; and
(C) carried out to determine whether the
person or entity is in compliance with Federal
environmental laws (including any permit is-
sued under a Federal environmental law).
SEC. 4. ADMISSIBILITY OF REPORTS, FINDINGS, OPINIONS,
OR OTHER COMMUNICATIONS.
(a) IN GENERAL.—Subject to subsection (b) and not-
withstanding any other provision of law, a report, finding,
opinion, or other communication of a person or entity re-
lated to, and essentially constituting a part of, a voluntary
environmental self-evaluation that is made in good faith
shall not be admissible evidence in any legal action or ad-
ministrative procedure under Federal law and shall not be
subject to any discovery procedure under Federal law,
unless—
(1) the person or entity that initiated the self-
evaluation expressly waives the right of the person
or entity to exclude from the evidence or procedure
material subject to this section; or
(2) after an in camera hearing, the appropriate
Federal court determines that—
(A)(i) the report, finding, opinion, or other
communication indicates noncompliance with a
Federal environmental law; and
(ii) the person or entity failed to initiate
efforts to achieve compliance with the law with-
in a period of time that is reasonable and that
is adequate to achieve compliance (including
submitting an appropriate permit application);
(B) compelling circumstances—
(i) make it necessary to admit the en-
vironmental audit report, finding, opinion,
or other communication into evidence; or
(ii) necessitate that the environmental
audit report, finding, opinion, or other
communication be subject to discovery pro-
cedures;
(C) the person or entity is asserting the
applicability of the exclusion under this sub-
section for a fraudulent purpose; or
(D) the environmental audit report, find-
ing, opinion, or other communication was pre-
pared for the purpose of avoiding disclosure of
information required for an investigative, ad-
ministrative, or judicial proceeding that, at the
time of preparation, was imminent or in
progress.
(b) EXCLUSIONS.—Subsection (a) shall not apply
to—
(1) a document or other information required to
be developed, maintained, or reported pursuant to a
Federal environmental law;
(2) a document or other information required to
be available to a Federal agency or a State agency
designated to carry out a regulatory activity pursu-
ant to a Federal environmental law;
(3) information obtained by a Federal agency
or State agency referred to in paragraph (2) through
observation, sampling, or monitoring; or
(4) information obtained by a Federal agency
or State agency referred to in paragraph (2) through
an independent source.
SEC. 5. TESTIMONY.
Notwithstanding any other provision of law, a person
or entity, including any officer or employee of the person
or entity, that performs a voluntary environmental self-
evaluation may not be required to give testimony in a Fed-
eral court or an administrative proceeding of a Federal
agency without the consent of the person or entity con-
cerning the voluntary environmental self-evaluation, in-
cluding an environmental audit report, finding, opinion,
or other communication with respect to which section 3(a)
applies.
SEC. 6. DISCLOSURES.
(a) IN GENERAL.—The disclosure of information re-
lating to a Federal environmental law to the appropriate
official of a Federal or State agency responsible for admin-
istering a Federal environmental law shall be considered
to be a voluntary disclosure if—
(1) the disclosure of information arises out of
a voluntary environmental self-evaluation;
(2) the person or entity that initiates the self-
evaluation—
(A) ensures that the disclosure is made
promptly after receiving knowledge of the infor-
mation referred to in paragraph (1); and
(B) initiates an action to address the is-
sues identified in the disclosure—
(i) within a reasonable period of time
after receiving knowledge of the informa-
tion; and
(ii) within a period of time that is
adequate to achieve compliance with the
requirements of the Federal environmental
law that is the subject of the action (in-
cluding submitting an application for an
applicable permit); and
(3) the person or entity that makes the disclo-
sure provides any further relevant information re-
quested, as a result of the disclosure, by the appro-
priate official of the Federal or State agency respon-
sible for administering the Federal environmental
law.
(b) INVOLUNTARY DISCLOSURES.—For the purposes
of this Act, a disclosure of information to an appropriate
official of a Federal or State agency responsible for admin-
istering a Federal environmental law shall not be consid-
ered to be a voluntary disclosure if the person or govern-
ment entity making the disclosure has been found by a
Federal or State court to have committed a pattern of sig-
nificant 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 disclosure.
(c) PRESUMPTION OF APPLICABILITY.—If a person
or entity makes a disclosure other than a disclosure re-
ferred to in subsection (b) of a violation of a Federal envi-
ronmental law to an appropriate official of a Federal or
State agency responsible for administering the Federal en-
vironmental law—
(1) there shall be a presumption that the disclo-
sure is a voluntary disclosure, if the person or entity
provides information supporting a claim that the in-
formation is a voluntary disclosure at the time the
person or entity makes the disclosure; and
(2) until such time as the presumption is rebut-
ted, the person or entity shall be immune from any
administrative, civil, or criminal penalty for the vio-
lation.
(d) REBUTTAL OF PRESUMPTION.—
(1) IN GENERAL.—The head of a Federal or
State agency described in subsection (c) shall have
the burden of rebutting a presumption established
under such subsection. If the head of the Federal or
State agency fails to rebut the presumption pursu-
ant to this subsection—
(A) the head of the Federal or State agen-
cy may not assess an administrative penalty
against a person or entity described in sub-
section (c) with respect to the violation by the
person or entity and may not issue a cease and
desist order for the violation; and
(B) no Federal or State court may assess
a civil penalty or criminal negligence penalty
against the person or entity for the violation.