HR 352 IH

To establish certain privileges and immunities for information disclosed as part of a voluntary self-evaluation of compliance with environmental requirements, relating to compliance with environmental laws, and for other purposes.

To establish certain privileges and immunities for information disclosed as part of a voluntary self-evaluation of compliance with environmental requirements, relating to compliance with environmental laws, and for other purposes.

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

SECTION 1. SHORT TITLE.

This Act may be cited as the `Voluntary Environmental Self-Evaluation Act'.

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 executive branch of a State or local government with authority to administer or enforce any environmental law.

(3) ENVIRONMENTAL LAW- The term `environmental 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 Environmental Response, Compensation, and Liability 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 Transportation Act (49 U.S.C. 1801-1813).

(xvi) Any other statute enacted after the effective date of this Act that addresses 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 subparagraph (A).

Such term includes any regulation or other requirement 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-EVALUATION- 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 MANAGEMENT SYSTEM- The term `environmental compliance management system' encompasses the regulated 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

(B) Assignment of overall responsibility for overseeing compliance with policies, standards, procedures, and assignment of specific responsibility for assuring compliance at each facility or operation.

(C) Mechanisms for systematically assuring that compliance policies, standards, and procedures are being carried out, including monitoring and auditing systems reasonably designed 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 retaliation.

(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 procedures, including consistent enforcement through appropriate disciplinary mechanisms.

(F) Procedures for the prompt and appropriate correction of any violations, and any necessary modifications to the regulated entity's program to prevent future violations.

(6) VOLUNTARY ENVIRONMENTAL SELF-EVALUATION REPORT- (A) The term `voluntary environmental self-evaluation report' means documents prepared 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 observations, findings, opinions, suggestions, or conclusions, 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 limited 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 appendices.

(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 proceeding' 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 testimony relating to a voluntary environmental self-evaluation shall be admissible evidence in any Federal or State administrative or judicial proceeding under any environmental 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 environmental law; or

(2) information with respect to a regulated entity's specific intentional or willful violation of an environmental law.

(c) WAIVER- Any entity entitled to a privilege of nondisclosure under subsection (a) may waive such privilege 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 disclose the information on the basis of a privilege under subsection (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 criminal proceeding) to convene an in camera proceeding to determine the application of the privilege. The administrative 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 subsection (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 proceeding) determines, in an in camera proceeding under subsection (d), that--

(1) the report, finding, opinion, or other document or communication or testimony indicates noncompliance with an environmental law by such entity, and such entity failed to initiate efforts to achieve compliance with the law within a reasonable period of time in a manner consistent with applicable provisions of law;

(2) such entity is asserting the applicability of the privilege under this section for a fraudulent purpose; or

(3) the report was prepared for the purpose of avoiding disclosure of information required for a then pending or imminent specific investigative, administrative, or judicial proceeding of which the regulated 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 determination referred to in subsection (e). A law enforcement official, having probable cause (based upon information obtained from a source independent of a voluntary environmental self-evaluation 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 disclosure in an in camera hearing under subsection (d). During any such hearing, the court shall permit the agency to review, but not to disclose or use the information for purposes of any investigation or proceeding.

SEC. 4. IMMUNITY FOR CERTAIN VOLUNTARY DISCLOSURES.

(a) IN GENERAL- Whenever any entity has disclosed to the Federal or State agency administering any environmental 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 admissible 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, administrative, 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 violation as the agency concerned reasonably requests, other than information subject to a nondisclosure privilege under section 3 or under any other authority 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 common control of a regulated 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 a regulated entity voluntarily discloses to a Federal or State agency information relating to the violation by such entity of an environmental law, if such information was obtained 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 respect to such violation if the entity provides information supporting a claim that the entity is qualified for such immunity at the time the entity makes the disclosure. Such presumption shall be conclusive unless 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 immunity under subsection (a) is applicable to such entity (or officer or employee or agent) with respect to any violation.

SEC. 5. SAVINGS CLAUSE.

(a) AUTHORITY TO ISSUE CERTAIN ORDERS- Nothing 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.