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) with authority to
administer or enforce any environmental law.
(2) STATE AGENCY.—The term ‘‘State agency’’
means any agency or instrumentality of the execu-
tive branch of a State or local government with au-
thority to administer or enforce any environmental
law.
(3) ENVIRONMENTAL
LAW.—The term ‘‘envi-
ronmental law’’ means the following:
(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 (42
U.S.C. 300f et seq.).
(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).
(xvi) Any other statute enacted after
the effective date of this Act that address-
es the same or similar subject matter.
(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 by
regulated entities of facility operations and practices
related to meeting environmental requirements. Such
term shall not include an environmental compliance
management system.
(5) ENVIRONMENTAL
COMPLIANCE
MANAGE-
MENT SYSTEM.—The term ‘‘environmental compli-
ance management system’’ encompasses the regu-
lated entity’s systematic efforts, 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 responsi-
bility 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 and auditing systems reasonably de-
signed to detect and correct violations, periodic
evaluation of the overall performance of the
compliance management system, and a means
for employees or agents to report violations of
environmental requirements without fear of re-
taliation.
(D) Efforts to communicate effectively the
regulated 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 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 regulated 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 owner or operator of the facility
as a result of the self-evaluation.
(7) CIVIL PROCEEDINGS.—The term ‘‘civil pro-
ceeding’’ includes any administrative or civil judicial
proceeding, including those for suspension, or listing.
(8) REGULATED ENTITY.—The term ‘‘regulated
entity’’ means an entity, including a Federal, State,
or municipal agency or facility, regulated under an
environmental law.
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 a regulated enti-
ty’s specific intentional or willful violation of an en-
vironmental 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
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 dis-
close the information on the basis of a privilege under sub-
section (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 crimi-
nal proceeding) to convene an in camera proceeding to de-
termine the application of the privilege. The administra-
tive 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 sub-
section (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 pro-
ceeding) determines, in an in camera proceeding under
subsection (d), that—
(1) the report, finding, opinion, or other docu-
ment or communication or testimony indicates non-
compliance with an environmental law by such enti-
ty, and such entity failed to initiate efforts to
achieve compliance with the law within a reasonable
period of time in a manner consistent with applica-
ble provisions of law;
(2) such entity is asserting the applicability of
the privilege under this section for a fraudulent pur-
pose; or
(3) the report was prepared for the purpose of
avoiding disclosure of information required for a
then pending or imminent specific investigative, ad-
ministrative, or judicial proceeding of which the reg-
ulated entity had knowledge.
Whenever an administrative law judge or a court has ruled
under this subsection that the privilege does or does not
apply to any report, finding, opinion, or other document
or communication or testimony of any entity, such entity
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
if the court, in an in camera hearing, makes any deter-
mination referred to in subsection (e). A law enforcement
official, having probable cause (based upon information
obtained from a source independent of a voluntary envi-
ronmental self-evaluation report) to believe that a criminal
offense has been committed under any of the covered envi-
ronmental 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 other-
wise use the contents of the report in any way, unless the
person or entity for whom the report was prepared ex-
pressly 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 agen-
cy to review, but not to disclose or use the information
for purposes 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 and officers, employees, and
agents of 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;
(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 a regulated entity whose senior manage-
ment 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 identi-
fied in a judicial or administrative order, consent agree-
ment or order, conviction, or plea agreement.
(c) PROCEDURE.—
(1) PRESUMPTION.—Whenever a regulated enti-
ty voluntarily discloses to a Federal or State agency
information relating to the violation by such entity
of an environmental law, if such information was ob-
tained 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 re-
spect to such violation if the entity provides informa-
tion supporting a claim that the entity is qualified
for such immunity at the time the entity makes the
disclosure. Such presumption shall be conclusive un-
less 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 im-
munity under subsection (a) is applicable to such en-
tity (or officer or employee or agent) 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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