Makes such provision inapplicable to an audit report if, after an in camera hearing, a judge determines that: (1) the party that initiated the audit expressly waives the protection provided by this Act; (2) the audit provides evidence of noncompliance with a covered Federal law and appropriate efforts to achieve compliance were not promptly initiated and pursued with reasonable diligence; (3) the party that is asserting the applicability of such provision is doing so for a fraudulent purpose; or (4) the audit report or finding was prepared for the purpose of avoiding disclosure of information required for a governmental investigative, administrative, or judicial proceeding that, at the time of preparation, was imminent or in progress.
Sets forth provisions regarding waivers and confidential disclosures, seizure of an audit report by law enforcement officials, handling of the report, filing a petition with an appropriate court, in camera hearings, and the burden of proof.
Authorizes a judge: (1) after an in camera hearing, to require disclosure of or testimony regarding an audit report or finding for which protection is asserted if the judge determines that the information is not subject to protection under this Act; and (2) to suppress any evidence arising or derived from the failure of a government official to comply with this Act.
Prohibits a party that performs an audit from giving testimony concerning the audit in any judicial or administrative proceeding that relates to a non-delegated covered Federal law without the consent of the party that initiated the audit.
Provides that if a party discloses information relating to a covered Federal law to an appropriate official of an administering Federal or State agency, the disclosure shall be considered to be a voluntary disclosure, subject to limited immunity protection, regardless of whether the disclosure is required by law, if: (1) the disclosure arises out of a voluntary audit or the operation of a voluntary environmental compliance management system and the disclosure is made promptly after the party receives knowledge of the information; and (2) the party initiates an action to address the issues identified in the disclosure within a reasonable period of time and fulfills other specified requirements.
Sets forth provisions regarding: (1) permissible sanctions and admission into evidence; (2) mitigating circumstances; (3) involuntary disclosures; and (4) resolution of immunity disputes.
Allows a State law (with exceptions) to provide that, under appropriate conditions, a voluntary audit report, or a finding related to and constituting part of a voluntary audit report, shall not be: (1) subject to discovery or any other investigatory procedure governed by State or local law; or (2) admissible as evidence in any State or local judicial action or administrative proceeding. Provides for limited protection for testimony and for disclosure of voluntary environmental audit information.
Prohibits a Federal agency from: (1) refusing to delegate a covered Federal law to a State or local agency; (2) refusing to approve or authorize a State or local program under a covered Federal law because the State has such a law in effect; or (3) taking other actions that would effectively require a State to rescind or limit any protection of such State law.
Amends the Small Business Act to include within assistance from small business development centers assistance provided to small businesses in complying with the requirements necessary to receive voluntary audit protection.
[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 1661 Introduced in Senate (IS)]
106th CONGRESS
1st Session
S. 1661
To amend title 28, United States Code, to provide that certain
voluntary disclosures of violations of Federal law made as a result of
a voluntary environmental audit shall not be subject to discovery or
admitted into evidence during a judicial or administrative proceeding,
and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 29, 1999
Mrs. Hutchison (for herself and Mr. Lott) 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 law made as a result of
a voluntary environmental audit shall not be subject to discovery or
admitted into evidence during a judicial or administrative proceeding,
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 ``Environmental Protection Partnership
Act''.
SEC. 2. FINDINGS.
Congress finds that--
(1) it is in the interest of the United States to promote
voluntary efforts to maximize compliance with environmental
laws and to increase protection of the environment and public
health;
(2) voluntary environmental audit and compliance management
systems have greatly enhanced compliance with environmental
laws and should be encouraged by the Federal Government;
(3) 2 means of directly encouraging voluntary environmental
audit and compliance management systems are--
(A) granting limited protection from disclosure of
voluntary environmental audits; and
(B) granting limited protection for parties that
promptly disclose information from voluntary
environmental audits or compliance management systems
and correct any noncompliance discovered as a result of
the voluntary environmental audits or compliance
management systems;
(4) Federal law does not encourage voluntary environmental
audits and compliance management systems and may actually
create disincentives to conducting voluntary environmental
audits or implementing compliance management systems;
(5) in the interest of increasing environmental protection,
the Federal Government should not impede the efforts of States
to encourage voluntary environmental audits through adoption of
State laws granting limited protection for voluntary efforts to
maximize compliance with environmental laws;
(6) State laws granting those protections should apply in
all proceedings in which the State is exercising authority
under State or Federal law; and
(7) the protections offered under this Act do not relieve
parties from the need to comply with otherwise applicable
requirements to disclose information under Federal, State, or
local environmental laws.
SEC. 3. VOLUNTARY AUDIT PROTECTION.
(a) In General.--Part VI of title 28, United States Code, is
amended by inserting after chapter 176 the following:
``CHAPTER 177--VOLUNTARY AUDIT PROTECTION
``Sec.
``3601. Admissibility of environmental audit reports.
``3602. Testimony.
``3603. Disclosures.
``3604. Recognition of State efforts to encourage compliance.
``3605. Definitions.
``Sec. 3601. Admissibility of environmental audit reports
``(a) General Rule.--
``(1) In general.--Except as provided in paragraphs (2) and
(3), an environmental audit report that is prepared in good
faith, or a finding, opinion, or other communication that is
made in good faith by a person or government entity and that
relates to, and essentially constitutes a part of, an
environmental audit report, shall not be--
``(A) subject to discovery or any other
investigatory procedure; or
``(B) admissible as evidence in any judicial action
or administrative proceeding.
``(2) Excluded items.--Paragraph (1) shall not apply to--
``(A) a document, a communication, data, a report,
or any other item of information that is required to be
collected, developed, maintained, or reported to a
regulatory agency under a covered Federal law;
``(B) information obtained by observation,
sampling, or monitoring by a regulatory agency; or
``(C) information obtained from a source
independent of the environmental audit.
``(3) Inapplicability.--Paragraph (1) shall not apply to an
environmental audit report if, after an in camera hearing under
subsection (c), a judge determines that--
``(A) the person or government entity that
initiated the environmental audit expressly waives, in
accordance with subsection (b), the protection provided
by paragraph (1);
``(B) the environmental audit provides evidence of
noncompliance with a covered Federal law and
appropriate efforts to achieve compliance were not
promptly initiated and pursued with reasonable
diligence;
``(C) the person or government entity that is
asserting the applicability of paragraph (1) is doing
so for a fraudulent purpose; or
``(D) the environmental audit report, finding,
opinion, or other communication was prepared for the
purpose of avoiding disclosure of information required
for a governmental investigative, administrative, or
judicial proceeding that, at the time of preparation,
was imminent or in progress.
``(b) Waiver.--
``(1) In general.--The protection provided by subsection
(a)(1) may be waived by the person or government entity for
which an environmental audit is prepared.
``(2) Portions waived.--A waiver under paragraph (1) shall
apply only to the portion or portions of the environmental
audit report, finding, opinion, or other communication that the
person or government entity expressly waives.
``(3) Confidential disclosures.--Disclosure of an
environmental audit report shall not constitute a waiver of the
protection provided by subsection (a)(1) if--
``(A) the person or government entity for which the
environmental audit is prepared or the owner or
operator of a facility or activity evaluated in the
environmental audit discloses the environmental audit
to any person employed by (including a temporary or
contract employee), any officer or director of, any
partner or joint venturer in, any legal representative
of, or any independent contractor retained by the
person, government entity, owner, or operator to
address an issue raised by the environmental audit; or
``(B) the disclosure is pursuant to a
confidentiality agreement between the person or
government entity for which the evaluation was prepared
or the owner or operator of a facility or activity
evaluated in the environmental audit and--
``(i) a business associate or potential
business associate;
``(ii) a lender or potential lender;
``(iii) an insurer or potential insurer;
``(iv) a transferee or potential
transferee; or
``(v) any other person or government entity
having environmental or commercial interests
in, similar to, or substantially aligned with
the facility or activity evaluated in the
environmental audit.
``(c) Review.--
``(1) Disclosure and testimony.--A judge may, after an in
camera hearing, require disclosure of or testimony concerning
an audit report, finding, opinion, or other communication for
which protection under subsection (a)(1) is asserted if the
judge determines that the information subject to the disclosure
or testimony is not subject to protection under subsection
(a)(1).
``(2) Criminal evidence.--
``(A) Seizure.--Based on information obtained from
a source independent of an environmental audit report,
a law enforcement official may seize an environmental
audit report for which protection is asserted under
subsection (a)(1) if--
``(i) the seizure is pursuant to a lawful
search and seizure; and
``(ii) the law enforcement official has
probable cause to believe that--
``(I) a criminal offense has been
committed under a covered Federal law;
and
``(II) the report constitutes, or
may lead to discovery of, evidence of
the criminal offense.
``(B) Handling of report.--On taking possession of
a report under subparagraph (A), a law enforcement
official shall immediately place the report under seal
and shall not review, disclose, or otherwise use the
contents of the report in any way, unless the person or
government entity for which the report was prepared--
``(i) expressly waives protection for the
report in accordance with subsection (b); or
``(ii) after actual notice of the seizure,
does not file a timely petition under
subparagraph (C).
``(C) Petition.--Not later than 30 days after
receiving actual notice of the seizure of an
environmental audit report, the person or government
entity for which the report was prepared or the owner
or operator of the facility or activity evaluated in
the report may file with the appropriate court a
petition requiring an in camera hearing under
subparagraph (D).
``(D) In camera hearing.--
``(i) In general.--On the filing of a
petition under subparagraph (C), the court
shall issue an order--
``(I) scheduling an in camera
hearing not later than 45 days after
the date of the filing of the petition
to determine whether the environmental
audit report (or a portion of the
report) is protected under subsection
(a)(1);
``(II) allowing the law enforcement
official to remove the seal from the
report to review the report;
``(III) allowing the law
enforcement official to consult with an
enforcement agency concerning the
contents of the report to prepare for
the in camera hearing; and
``(IV) placing appropriate
limitations on distribution and review
of the report to protect against
unnecessary disclosure.
``(ii) Protection of information.--Unless a
court finds the information to be subject to
disclosure, any information used in preparation
for an in camera hearing--
``(I) shall not be used in any
investigation or proceeding against the
person or government entity for which
the environmental audit report was
prepared or the owner or operator of
the facility or activity evaluated in
the environmental audit report; and
``(II) shall be kept confidential.
``(3) Burden of proof.--
``(A) Burden of producing evidence.--In an in
camera hearing under paragraph (1) or (2), the person
asserting the protection of subsection (a)(1) shall
have the burden of demonstrating a prima facie basis
for the application of subsection (a)(1). If there is
evidence of noncompliance with a covered Federal law,
the prima facie basis shall include, to the extent that
the noncompliance was identified by the environmental
audit report, evidence that appropriate efforts to
achieve compliance were promptly initiated and pursued
with reasonable diligence.
``(B) Burden of persuasion.--In an in camera
hearing under paragraph (1) or (2), the person seeking
the disclosure of information has the burden of
persuasion that the protection provided by subsection
(a)(1) does not apply.
``(4) Suppression of evidence.--
``(A) In general.--A judge may suppress any
evidence arising or derived from the failure of a
government official to comply with this subsection.
``(B) Burden of proof.--A government official who
fails to comply with this subsection shall have the
burden of proving that any proffered evidence did not
arise and was not derived from the failure.
``(d) Effect on Other Rules.--Nothing in this chapter limits,
waives, or abrogates the scope or nature of any statutory or common law
protection against the discovery or admissibility of evidence,
including the attorney-client privilege and the work product doctrine.
``Sec. 3602. Testimony
``A person or government entity (including a present or former
officer, employee, agent, or contractor of the person or government
entity) that performs an environmental audit may not give testimony
concerning the environmental audit in any judicial or administrative
proceeding that relates to a nondelegated covered Federal law without
the consent of the person or government entity that initiated the
audit, including testimony concerning an environmental audit report,
finding, opinion, or other communication with respect to which section
3601(a)(1) applies.
``Sec. 3603. Disclosures
``(a) In General.--If a person or government entity discloses
information relating to a covered Federal law to an appropriate
official of a Federal or State agency responsible for administering the
covered Federal law, the disclosure shall be considered to be a
voluntary disclosure subject to protection under subsection (b),
regardless of whether the disclosure is required by law, if--
``(1) the disclosure arises out of a voluntary
environmental audit or the implementation of a voluntary
environmental compliance management system by the person or
government entity;
``(2) the disclosure is made promptly after the person or
government entity receives knowledge of the information;
``(3) the person or government entity initiates an action
to address the issues identified in the disclosure--
``(A) within a reasonable period of time after
receiving knowledge of the information; and
``(B) within a period of time that is adequate to
achieve compliance with the requirements of the covered
Federal law that is the subject of the action; and
``(4) the person or government entity reasonably provides
any further relevant information requested, as a result of the
disclosure, by the appropriate official of the Federal or State
agency responsible for administering the covered Federal law,
not including information protected by this chapter, the
attorney-client privilege, the attorney work product doctrine,
or any other applicable privilege.
``(b) Limited Immunity.--
``(1) In general.--Subject to paragraph (2), if a person or
government entity makes a voluntary disclosure under subsection
(a)--
``(A) the person or government entity shall be
immune from any enforcement action brought as a result
of the disclosure; and
``(B) the disclosed information shall not, in any
court or administrative proceeding, be subject to
discovery or be admissible against the person or
government entity that made the disclosure.
``(2) Permissible sanctions and admission into evidence.--
Paragraph (1) does not preclude--
``(A) imposition of a civil sanction in an
administrative or civil action to the extent that a
violation was committed intentionally and willfully;
``(B) imposition of a criminal sanction--
``(i) against a natural person, if--
``(I) the person committed, or
aided or abetted the commission of, a
disclosed violation intentionally and
willfully; or
``(II) the disclosed violation is a
knowing endangerment offense described
in section 309(c)(3) of the Federal
Water Pollution Control Act (33 U.S.C.
1319(c)(3)), section 3008(e) of the
Solid Waste Disposal Act (42 U.S.C. 6928(e)), or section 113(c)(5) of
the Clean Air Act (42 U.S.C. 7413(c)(5)); or
``(ii) against an entity other than a
natural person, if--
``(I) the disclosed violation was
committed intentionally and willfully
by a member of the entity's senior
management;
``(II) the disclosed violation is a
knowing endangerment offense described
in section 309(c)(3) of the Federal
Water Pollution Control Act (33 U.S.C.
1319(c)(3)), section 3008(e) of the
Solid Waste Disposal Act (42 U.S.C.
6928(e)), or section 113(c)(5) of the
Clean Air Act (42 U.S.C. 7413(c)(5));
or
``(III) the entity's policies or
lack of preventive actions or systems
contributed materially to the
occurrence of the violation; or
``(C) admission of information into evidence for
the purpose of seeking injunctive relief against the
person or government entity to remedy a continuing
adverse public health or environmental effect of a
violation.
``(3) Mitigating circumstances.--A sanction under
subparagraph (A) or (B) of paragraph (2) shall, to the extent
appropriate, be mitigated by--
``(A) factors relating to the nature of the
violation;
``(B) circumstances of the disclosure;
``(C) efforts of the disclosing person or
government entity to prevent or resolve the violation;
and
``(D) other relevant considerations.
``(c) Involuntary Disclosures.--A disclosure of information to an
official of a Federal or State agency shall not be considered to be a
voluntary disclosure under subsection (a)(1) if the person or
government entity making the disclosure is found under subsection (e)
to have committed a pattern of significant repeated violations of
Federal or State law, or orders on consent, relating to environmental
quality, on the basis of the occurrence of separate and distinct events
giving rise to the violations, during the 3-year period preceding the
date of the disclosure, if the violations--
``(1) did not result from the same underlying cause;
``(2) involved the same legal requirement as the violation
being disclosed;
``(3) are determined to have occurred through final court
or agency determinations or through admissions by the person or
government entity in consent agreements, arrived at after
opportunity for an adjudicative hearing and not subject to
further appeal; and
``(4)(A) occurred at the same facility or occurred at 2 or
more facilities under common control; and
``(B) senior management of the disclosing person or
government entity had actual knowledge of the violations and
failed to take timely corrective measures.
``(d) Presumption of Applicability.--
``(1) In general.--Subject to subsection (c), there shall
be a rebuttable presumption that a disclosure by a person or
government entity of a violation of a covered Federal law to an
appropriate official of a Federal or State agency responsible
for administering the covered Federal law is a voluntary
disclosure described in subsection (a), if the person or
government entity provides information at the time of the
disclosure supporting a claim that the information is a
voluntary disclosure.
``(2) Conclusive applicability.--Unless the appropriate
official of the Federal or State agency to whom a disclosure is
made under paragraph (1) issues a written response under
paragraph (3), the presumption under paragraph (1) shall be
conclusive.
``(3) Disputes.--If, not later than 60 days after receiving
the disclosure in writing, the appropriate official of the
Federal or State agency to whom a disclosure is made under
paragraph (1) issues a written response disputing that the
disclosure is a voluntary disclosure, the issue shall be
resolved--
``(A) by settlement between the disclosing person
or government entity and the appropriate official; or
``(B) in an enforcement action against the
disclosing person or government entity in accordance
with subsection (e).
``(e) Resolution of Immunity Disputes.--
``(1) In general.--In an enforcement action brought against
a person or government entity concerning an alleged violation
for which the person or government entity claims to have made a
disclosure to which this section applies, the judge shall
determine the application of this section.
``(2) Burden of proof.--In an action described in paragraph
(1)--
``(A) the person or government entity making the
disclosure shall have the burden of establishing a
prima facie case that the disclosure was consistent
with the requirements of subsection (a)(1); and
``(B) if a prima facie case is established, the
plaintiff shall have the burden of showing, by a
preponderance of the evidence or, in a criminal case,
by proof beyond a reasonable doubt, that this section
does not apply.
``(f) Statutory Construction.--Except as expressly provided in this
section, nothing in this section affects the authority of a Federal or
State agency responsible for administering a covered Federal law to
carry out any requirement of the law associated with information
disclosed in a voluntary disclosure described in subsection (a)(1).
``Sec. 3604. Recognition of State efforts to encourage compliance
``(a) State Laws Encouraging Voluntary Environmental Audits.--
``(1) Limited protection from disclosure.--Except as
provided in paragraph (3), a State law may provide that, under
appropriate conditions, a voluntary environmental audit report,
or a finding, opinion, or other communication relating to and
constituting part of a voluntary environmental audit report,
shall not be--
``(A) subject to discovery or any other
investigatory procedure governed by State or local law;
or
``(B) admissible as evidence in any State or local
judicial action or administrative proceeding.
``(2) Limited protection for testimony.--Except as provided
in paragraph (3), a State law may provide that, under
appropriate conditions, no individual that performs a voluntary
environmental audit shall be required to give testimony in any
State or local judicial action or administrative proceeding
concerning the voluntary environmental audit.
``(3) Required disclosures unaffected.--The protections
described in paragraphs (1) and (2) shall not apply to the
extent that any information is otherwise required to be
disclosed under Federal, State, or local law.
``(4) Limited protection for disclosure of voluntary
environmental audit information.--A State law may provide that,
under appropriate conditions, a person or entity that promptly
discloses information concerning noncompliance with a covered
Federal law or other environmental law discovered as a result
of a voluntary environmental audit or implementation of an
environmental compliance management system to an appropriate
Federal, State, or local official may be protected in whole or
in part from an enforcement action for the noncompliance in a
State or local judicial action or administrative proceeding.
``(b) Exclusivity of State Protection.--In any State or local
judicial action or administrative proceeding to enforce a State or
local law or covered Federal law, if a State law provides any of the
protections referred to in subsection (a), a person or entity
qualifying for the protection shall receive the protection afforded by
the applicable State law in lieu of any protection provided by sections
3601 through 3603.
``(c) Prohibited Impediments to State Law.--A Federal agency shall
not--
``(1) refuse to delegate a covered Federal law to a State
or local agency or refuse to approve or authorize a State or
local program under a covered Federal law because the State has
in effect a law referred to in subsection (a);
``(2) make a permit, license, or other authorization, a
contract, or a consent decree or other settlement agreement
contingent on a person waiving any protection of a State law
referred to in subsection (a); or
``(3) take any other action that has the effect of
requiring a State to rescind or limit any protection of a State
law referred to in subsection (a).
``Sec. 3605. Definitions
``In this chapter:
``(1) Covered federal law.--The term `covered Federal
law'--
``(A) means--
``(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 Oil Pollution Act of 1990 (33
U.S.C. 2701 et seq.);
``(v) the Safe Drinking Water Act (42
U.S.C. 300f et seq.);
``(vi) the Noise Control Act of 1972 (42
U.S.C. 4901 et seq.);
``(vii) the Solid Waste Disposal Act (42
U.S.C. 6901 et seq.);
``(viii) the Clean Air Act (42 U.S.C. 7401
et seq.);
``(ix) the Comprehensive Environmental
Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9601 et seq.);
``(x) the Emergency Planning and Community
Right-To-Know Act of 1986 (42 U.S.C. 11001 et
seq.);
``(xi) the Pollution Prevention Act of 1990
(42 U.S.C. 13101 et seq.);
``(xii) the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.);
``(xiii) chapter 51 of title 49, United
States Code;
``(xiv) section 13 or 16 of the Act
entitled `An Act making appropriations for the
construction, repair, and preservation of
certain public works on rivers and harbors, and
for other purposes', approved March 3, 1899
(commonly known as the `River and Harbor Act of
1899') (33 U.S.C. 407, 411);
``(xv) the Surface Mining Control and
Reclamation Act of 1977 (30 U.S.C. 1201 et
seq.); and
``(xvi) any other Federal law enacted after
the date of enactment of this chapter that
addresses subject matter similar to a law
listed in clauses (i) through (xv);
``(B) includes a regulation or other binding agency
action issued under a law listed in subparagraph (A);
``(C) includes the terms and conditions of a permit
issued or other administrative action taken under a law
listed in subparagraph (A); and
``(D) includes a State law that operates as a
federally enforceable law under a law listed in
subparagraph (A) as a result of the delegation,
approval, or authorization of a State activity or
program.
``(2) Delegated covered federal law.--The term `delegated
covered Federal law' means a covered Federal law with respect
to which a State has been delegated primary authority for
enforcement in accordance with the covered Federal law, to the
extent that the State has been delegated the authority.
``(3) Enforcement action.--
``(A) In general.--The term `enforcement action'
means a criminal, civil, or administrative action for
the purpose of imposing a penalty or any other punitive
sanction, including imposition of a restriction on
providing to or receiving from the United States or any
State or political subdivision a good, material,
service, grant, license, permit, or other approval or
benefit.
``(B) Exclusion.--The term `enforcement action'
does not include an action solely for the purpose of
seeking injunctive relief to remedy a continuing
adverse public health or environmental effect of a
violation.
``(4) Environmental compliance management system.--The term
`environmental compliance management system' means the
systematic effort of a person or government entity, appropriate
to the size and nature of the person or government entity, to
prevent, detect, and correct a violation of law through--
``(A) a compliance policy, standard, or procedure
that identifies how an employee or agent shall meet the
requirements of the law;
``(B) assignment of overall responsibility for
overseeing compliance with policies, standards, and
procedures, and assignment of specific responsibility
for ensuring compliance at each facility or operation;
``(C) a mechanism for systematically ensuring that
compliance policies, standards, and procedures are
being carried out, including--
``(i) a monitoring or auditing system that
is reasonably designed to detect and correct a
violation;
``(ii) a periodic evaluation of the overall
performance of the compliance management
system; and
``(iii) a means for an employee or agent to
report a violation of an environmental
requirement without fear of retaliation;
``(D) an effort to communicate effectively the
standards and procedures of the person or government
entity to employees and agents of the person or
government entity;
``(E) an appropriate incentive to managers and
employees of the person or government entity to perform
in accordance with any compliance policy or procedure
of the person or government entity, including
consistent enforcement through an appropriate
disciplinary mechanism; and
``(F) a procedure for--
``(i) the prompt and appropriate correction
of any violation of law; and
``(ii) making any necessary modifications
to the standards or procedures of the person or
government entity to prevent future violations
of law.
``(5) Environmental audit report.--
``(A) In general.--The term `environmental audit
report' means a document prepared as a result of a
voluntary environmental audit.
``(B) Inclusion.--The term `environmental audit
report' includes--
``(i) a field note, draft, memorandum,
drawing, photograph, computer software or
stored information or electronically recorded
information, map, chart, graph, survey,
analysis (including a laboratory result,
instrument reading, and field analysis), and
other information pertaining to an observation,
finding, opinion, suggestion, or conclusion, if
such supporting information is collected or
developed for the primary purpose and in the
course of creating an audit;
``(ii) a document prepared by the auditor
or evaluator, which may describe the scope of
the evaluation, the information learned, any
conclusions or recommendations, and any
exhibits or appendices;
``(iii) an analysis of a portion or all of
the audit or issues arising from the audit; and
``(iv) an implementation plan or tracking
system that addresses an action taken or to be
taken by the owner or operator of the facility
as a result of the audit.
``(6) Intentional and willful.--The term `intentional and
willful' refers to a specific intent to violate or disregard
the law.
``(7) Judge.--The term `judge' includes an administrative
law judge.
``(8) Nondelegated covered federal law.--The term
`nondelegated covered Federal law' means a covered Federal law
that is not a delegated covered Federal law, to the extent that the
covered Federal law has not been delegated.
``(9) Voluntary disclosure.--The term `voluntary
disclosure' means the disclosure of information relating to a
voluntary environmental audit or voluntary implementation of an
environmental compliance management system with respect to
which the protections provided under section 3603 apply.
``(10) Voluntary environmental audit.--The term `voluntary
environmental audit' means an assessment, audit investigation,
or review that is--
``(A) initiated by a person or government entity;
``(B) carried out by an employee of the person or
government entity, or a consultant employed by the
person or government entity, for the purpose of
carrying out the assessment, evaluation, investigation,
or review; and
``(C) carried out for the purpose of determining or
improving compliance with, or liability under, a
covered Federal law, or assessing the effectiveness of
an environmental compliance management system.''.
(b) Technical Amendment.--The part analysis for part VI of title
28, United States Code, is amended by inserting after the item relating
to chapter 176 the following:
``177. Voluntary Audit Protection........................... 3601''.
SEC. 4. ASSISTANCE FROM SMALL BUSINESS DEVELOPMENT CENTERS.
Section 21(c)(3) of the Small Business Act (15 U.S.C. 648(c)(3)) is
amended--
(1) in subparagraph (S), by striking ``and'' at the end;
(2) in subparagraph (T), by striking the period at the end
and inserting ``; and''; and
(3) by adding at the end the following:
``(U) assisting small businesses in complying with
the requirements necessary to receive protections under
chapter 177 of title 28, United States Code.''.
SEC. 5. APPLICABILITY.
This Act and the amendments made by this Act shall apply to each
civil or criminal action or administrative proceeding that has not been
finally adjudicated as of the date of enactment of this Act.
SEC. 6. SUNSET PROVISION.
This Act and the amendments made by this Act shall be effective
during the 5-year period beginning on the date of enactment of this
Act.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S11644)
Read twice and referred to the Committee on Judiciary.
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