Volume 143, No. 160 covering the 1st Session of the 105th Congress (1997 - 1998) was published by the Congressional Record.
The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“THE STATE ENVIRONMENTAL AUDIT PROTECTION ACT” mentioning the Environmental Protection Agency was published in the Senate section on pages S12535-S12536 on Nov. 13, 1997.
The publication is reproduced in full below:
THE STATE ENVIRONMENTAL AUDIT PROTECTION ACT
Mr. ENZI. Mr. President, I come to the floor--in the waning hours of this session--to express my continuing frustration with the way that the Environmental Protection Agency is handling Wyoming's environmental audit law. The troubles began last September, when the EPA delayed granting final approval of Wyoming's clean air permitting plan.
Earlier this year, I joined with the other Members of Wyoming's congressional delegation in sending a letter to Administrator Carol Browner at the EPA. We suggested that it was inappropriate to withhold delegation of Clean Air Act permitting authority because of the State's environmental audit law. Administrator Browner responded with an assurance that,
EPA has not taken steps to withhold further delegations of Federal programs in Wyoming as a result of the State environmental audit law.
In September, the EPA announced that it had completed its review of Wyoming's audit law. It found that,
The State won't need to make statutory changes to the self-audit law to retain primacy over Federal laws like the Clean Air Act.
The EPA went on to say that,
The law shouldn't interfere with the Wyoming Department of Environmental Quality's efforts to gain primacy over several other Federal programs.
Mr. President, in spite of Ms. Browner's assurances, there has been a very real and ongoing manipulation of States that attempt to craft sensible audit laws. I trust that my colleagues from Colorado, Utah, Michigan, and Texas would be able to verify that activity. Their States have all been coerced by the EPA into changing their audit laws.
On October 29, I introduced the State Environmental Audit Protection Act, which is S. 1332. This bill would provide a safe harbor from EPA's coercive actions for States that adopt reasonable audit laws. The next day, the Senate Environment and Public Works Committee held a very good hearing on the issue. We listened to an excellent panel of witnesses on both sides of the issue. Both myself, and Senator Hutchison of Texas--
who has also introduced legislation to resolve this problem--testified on the need for Federal legislation.
I was interested to read in the paper on October 30, the day after the hearing, that the EPA is now requiring Wyoming to change its law. The EPA has submitted legislation to a special session of the Wyoming legislature. On Monday, a joint committee in Cheyenne heard preliminary testimony on the revisions. The proposal would strike at least 50 percent of Wyoming's law regarding discovery of evidence in criminal proceedings.
A State environmental audit law is designed to help clean up the environment. In Wyoming, we created our State law to provide incentives for good faith efforts. We thoroughly debated this issue in the Wyoming State legislature. We consulted with the State Department of Environmental Quality and different stakeholder groups. We wanted to provide a mechanism that would encourage people to make an extra effort--an extra effort--to clean up the environment in their communities. We debated it in a Democratic forum and we passed a consensus bill. And we passed it by more than a two-thirds vote in each body.
Our State law allows an entity to hire an auditor to review their operations. The entity might be a town that is trying to examine its storm drainage system. It might be a hospital that wants to review its air emissions. It might be a college or school district whose vocational education department uses solvents. It might be a company that maintains a construction yard, or a garage. These are all entities that may be affecting their environment without even knowing the consequences of their operations.
Some of them are on regular inspection schedules, but the majority of them will never be inspected.
How many of those entities would know, with 100 percent certainty, that they are in full compliance with all applicable State and Federal laws? How many of them think they are in compliance? How many of them don't know? How many inspectors are out there randomly checking these facilities?
These are questions I cannot answer. In fact, I asked a similar question to the Environmental Protection Agency in Senator Chafee's committee hearing. There was a general notion of how many EPA inspectors were employed, but they did not know how many total inspectors are out there. Furthermore, they could not say what percentage of regulated entities were on an actual inspection schedule.
There is one simple question here that I can answer. That is, how many of those regulated entities would ask an EPA inspector to come around and take a look? How many of them would trust the EPA to offer friendly advice.
The answer to these questions, my friends, is zero. People don't trust the EPA any more than they trust the IRS.
The fact is, Mr. President, most of these entities are afraid of the EPA. Most of them are unaware that their operations could land them in Federal court. They are unfamiliar with the regulations and they are afraid to find out if they are in compliance. They are afraid because if they search for problems and find them, they may be fined and even sued. And if they are sued, their own review has given regulators a roadmap for prosecution.
No small business is going to spend money to hire an auditor to collect evidence for regulators to use against the small business. And I do not believe more heavy handed enforcement is the answer. We, as legislators, should be able to encourage entities to look for problems. We can designlegislation that protects good faith efforts, without sacrificing traditional enforcement. We can design legislation that promotes cooperation toward a cleaner environment.
The EPA and the Department of Justice rely heavily on enforcement as a deterrent. But in spite of Vice President Gore's reinventing Government proposals--and in spite of President Clinton's commitment to revinventing regulations--neither the EPA nor the Department of Justice have supported any statutory compliance assistance programs. Their command and control methods remain firmly ensconced--not just in rhetoric, but in practice.
I agree that strong enforcement is necessary as a deterrent against environmental violations. I have never suggested that we should hamstring our regulators. We can, however, look at audit laws as a positive and reasonable way to supplement strong enforcement. When the goal is a cleaner, healthier environment, we should not be afraid to be innovative. We can do it in a reasonable and thoughtful way. We can agree not to penalize good behavior.
The EPA and the Department of Justice have shown a complete unwillingness, however, to cooperate. They have repeatedly argued against State and Federal audit laws. They maintain that such laws are unnecessary and dangerous. They describe numerous imaginative scenarios where laws could be abused. When asked for constructive suggestions, however, they choose instead to mischaracterize audit laws, implying that there is no middle ground. In the rhetorical attacks on audit laws, the EPA and Department of Justice always start by constructing their own premises--not those of the actual law--so the most frightful conclusions can be drawn to support their position.
I point this out because the term ``secrecy'' has been the most recurrent fallacy dragged across this debate. It was used to excess in the recent Environment and Public Works Committee hearing. The EPA maintains the danger of secrecy by suggesting that audit laws will shield evidence of wrongdoing and impede public access to information.
Nobody in this body has been talking about creating an audit law to allow secrecy or fraud. These are things the EPA argues against. They are things I have argued against. Under a well-crafted audit law, this kind of abuse can be easily avoided.
First, the EPA claims companies will conduct audits to hide evidence. I want to expose the holes in that argument. An audit report can only include information gathered during a specific time period and according to a defined audit procedure. Because privilege is not extended to cover fraud or criminal activity, it cannot reach back to cover prior malfeasance.
For example, in Wyoming, before a company conducts an audit pursuant to our State law, they must tell the regulators they plan to conduct an audit. Only information that is gathered after that date, and as a part of the audit, can fall under the audit protections. An audit report cannot include information that is otherwise required to be disclosed, such as emissions monitoring. It can only include information that is voluntarily disclosed.
How does the privilege work in practice? First, if nothing is discovered and nothing is disclosed, the report may not be privileged. If the company does find a deficiency during the audit, then it must report the problem and clean it up with due diligence. If these conditions are not met, then it cannot assert privilege to the information related to the deficiency. The privileged information is never secret because the deficiency must be disclosed.
Remember, the company must report the deficiency and clean it up to assert privilege. The public can view the disclosure form. They can know about the problem and they can make sure it is cleaned up. As long as these conditions for privilege are met, the report may not be admitted as evidence in a civil or administrative action. The end result of this is a cleaner environment--not secrecy--as the EPA suggests.
One only has to think logically to expose the flaws in EPA's arguments about secrecy. If a company says they are going to conduct an audit, then they must find violations, disclose them, and clean them up to get any benefit from the law. If they don't disclose anything, they gain no protections from an audit law. A company would not spend money to conduct an audit and then keep the violations secret. If they did so, they would face criminal liability for knowingly violating the law.
I ask my colleagues, if a company conducts an audit, discloses its violations, and cleans them up, what have we lost? Haven't we improved environmental quality? That is the goal of our environmental laws. That is the point of compliance assistance.
The EPA and Department of Justice maintain that audit laws run counter to our common interest in encouraging the kind of openness that builds trust between regulating agencies, the regulated community, and the public.
Mr. President, litigation does not build trust. Using voluntarily gathered information to prosecute good actors does not build trust. Enforcement depends on intimidation to act as a powerful deterrent. But it does not build trust.
Reasonable audit laws will promote cooperation between regulated entities and their regulators. We should ensure that people who act in good faith and who go the extra mile don't face stricter enforcement than those companies that do nothing. Audit laws do build trust.
Most importantly, they will result in a cleaner and healthier environment.
I look forward to working on this issue when the Senate reconvenes next year. It has been a broad bipartisan issue in the States and I know it can be a broad bipartisan solution here in the U.S. Senate.
I yield the floor.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LIEBERMAN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LIEBERMAN. Mr. President, I ask if it is appropriate that I be allowed to address the Senate in morning business?
The PRESIDING OFFICER. It is more than appropriate. The Senator from Connecticut is recognized to speak in morning business for up to 10 minutes.
____________________
Alerts Sign-up