Trent Lott

Mr. LOTT

Mr. LOTT. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Thursday, June 12, 1997, at 2 p.m. to hold a markup/business meeting.

Mr. LOTT

Mr. LOTT. Mr. President, yesterday Senator Kay Bailey Hutchison, my colleague and friend, introduced S. 866, legislation that provides a necessary Federal standard regarding voluntary environmental self- auditing for states. There are nearly two dozen States which are experimenting with laws to encourage self-audits. These laws are aimed at increasing environmental protection and directing scarce enforcement resources toward the real bad actors. We need Federal legislation to make these state laws work, and Senator Hutchison has a balanced, fair approach. I want to take this opportunity today to share with my colleagues how this legislative proposal will strengthen America's environmental policies. I will join Senator Hutchison as an active cosponsor to S. 866. First, I would like to explain what voluntary environmental self- auditing is all about. In the past 10 years, the number of environmental statutes and regulations that impose compliance obligations, and the corresponding civil and criminal penalties and sanctions for violations, have dramatically increased. In response to these developments, more and more companies are using environmental self-audit programs as a tool to ensure compliance. Generally, an environmental audit is a means of reviewing a business in order to get a snapshot of its overall compliance with environmental laws and to troubleshoot for potential future problems. EPA defines an audit as ``a systematic, documented, periodic and objective review by regulated entities of facility operations and practices related to meeting environmental requirements.'' Audits can include inspections of equipment to insure that permit requirements are being met; review of future and present risks of regulated and unregulated materials used at the facility; and surveys of the day-to-day operation of environmental management structure and resources. Some companies have compliance management systems that include day-to-day, even shift-to-shift, voluntary activities to assure compliance. No State or Federal law requires companies to undertake comprehensive environmental self-auditing. This is just a good business practice initiated by companies that are taking extra steps to be in full compliance with environmental law. There are no guidelines or standard practices--audits vary considerably because they must accommodate the individual needs of companies or specific facilities to be most effective. They are typically much more extensive than an inspection by a State or Federal regulator because they are done more often and because companies simply know much more about their operations and permit obligations than regulators do. A company conducting its own audit can identify and correct a much wider range of potential environmental violations. Mr. President, doesn't this sounds like a great idea? Unfortunately, many companies do not perform voluntary self-audits because the information contained in the audit documents can be obtained by Government regulators, prosecutors, citizens' groups, or private citizens and used to sue the company. Companies completing environmental audits develop documentation of their instances of noncompliance or areas of potential concern. These documents, if made public, are a roadmap for third parties or governments to sue even if the problem has already been corrected and no environmental harm has occurred. Remember, we have an incredibly complex compliance system. Last year a survey conducted by Arthur Anderson and the National Law Journal found that nearly 70 percent of 200 corporate attorneys interviewed said that they did not believe total compliance with the law was achievable. This is due to the complexity of the law, the varying interpretations of the regulators and the ever-present role of human error and the cost. Because of this complexity, it is possible and logical that companies which take on the task of self-evaluation will find violations--and that is what we want them to do. Find problems and fix them without waiting a year for a Government inspection. Companies are already vulnerable to extensive liability under environmental laws. Under the Clean Air Act Amendments of 1990, for example, the maximum civil penalty that may be assessed is now $25,000 per day per violation. EPA's fiscal year 1994 enforcement and compliance assurance accomplishments report shows that 166 civil judicial penalties were brought in 1994 totaling $65.6 million. On average, that is about $400,000 a case. There were 1,433 administrative penalty orders for the same year totaling $48 million. Mr. President, that's a lot of money. A pretty powerful disincentive to self-auditing. Yet, nearly two dozen states have recognized this disincentive to self-auditing and have enacted laws to fix the problem. These states and their citizens want more companies to conduct self-audits. Mississippi is one of the States that has acted on this issue. These State laws typically do three things: First, provide qualified evidentiary protection for internal company audit documents; second, grant penalty immunity to companies that conduct audits and voluntarily disclose all violations they discover in their audit; and third, require prompt cleanup of the violation. In other words, the States are saying that responsible, self-auditing companies that find and report problems to State authorities are rewarded. The companies do not have to pay a fine and are protected from any court action on an internal company audit. Mr. President, this is a fair deal. We get more environmental protection--which should be the goal of environmental laws--not just freedom from sanctions and penalties. Senator Hutchison's legislation brings better environmental compliance with a voluntary flexible component. Mr. President, this is basic common sense--companies have an incentive to find and fix their problems right away. What could be better for the environment? State officials also benefit because they can establish cooperative relationships with companies instead of the current adversarial enforcement system. Taxpayers get a better return from their tax dollars because enforcement resources can be redirected toward the bad guys who are not following the law. And, most importantly, we all benefit from greater compliance with our environmental laws. Some will say that these State laws are about secrecy and letting polluters off the hook. Opponents say that these laws make it more difficult to prosecute and that they will interfere with enforcement actions or compromise the public's right to know. Mr. President, this is just not true. These laws protect only the voluntary self-audit document. They do not protect any information required by law to be collected, developed, maintained, reported or otherwise made available to a Government agency. The opponents are saying that protection of the audit document will allow bad actors to hide violations and endanger human health. Of course, that is not true. Any action that causes an imminent threat is not protected and must be immediately reported to authorities. Companies gain nothing from these laws if they are using an audit for a fraudulent purpose, or if they find a violation and don't fix it. If they're cheating, they're out. These laws present a new way of doing business. No safeguards are removed. The State legislature is just as eager as the Federal Government to protect its citizens. Senator Hutchison's legislation has the same safeguards. Twenty-one States think this is a better way to get things done. Twenty-five other State legislatures are considering this voluntary self-audit legislation. Let me give you those numbers again: 21 states have enacted a voluntary audit law and 25 are considering one. Mr. President, that is a grand total of 46 States. I'd say this is a definite trend. The Federal Government ought to open its eyes and join the parade. We need to enact similar legislation on the Federal level to complement and assist those States with a full and effective implementation of this concept. That is what this bill is all about. No rollback of standards. No removal of any environmental law. Yes, a different approach, but one already tested in States where 95 million Americans are currently living. It is time for EPA to see the wisdom of 95 million Americans. Why not let the States continue to show us innovative ways to achieve environmental progress? I frequently ask that question. The answer is EPA wants to retain the right to enforce the law after it delegates program authority to a State. This means that without a Federal law granting a qualified exception for voluntary self-audits, the EPA can take separate enforcement actions--or overfile--regardless of any State action. The sad consequence is that a company that wishes to take advantage of a State audit law is not protected from Federal enforcement actions--even though the Federal inspectors didn't find the problem and the company has fixed it. Why would a company voluntarily disclose violations to a State when the Federal Government can come after them for the same thing? EPA has been very clear about its intent to scrutinize companies in States that have enacted laws and that are currently addressing audit bills in their legislatures. EPA has set up a task force to monitor the approval of State delegated programs under the Clean Air Act for States with voluntary environmental audit statutes. The agency has indicated that approval of certain State programs may be delayed or denied because of their State audit privilege statutes. EPA has used this threat to withhold Federal program delegation in order to influence pending State legislation. Does this sound like an agency whose charter is to clean up the environment or does this sound like a bureaucracy that focuses on punishment first? Is this a constructive environmental approach? Why--in the face of such Federal challenges--did the 21 States enact legislation? Because 95 million citizens want a cleaner environment. The States know it is the right thing to do. Americans want an approach that cleans the environment first. That is also why 25 other States want to consider alternatives. These States have shown great environmental courage. I firmly believe that States can design and implement effective and successful environmental laws. In fact, States have proven that the Federal Government does not always know best and does not always get the job done. I hope that EPA does not continue to minimize the independent sovereign rights of States to adopt and enforce environmental laws that protect the environment and add to our quality of life. Perhaps EPA needs to get a copy of the Constitution. Full use of these State laws will never happen as long as EPA continues an adversarial approach. And Americans miss an opportunity to achieve creative and cost-effective solutions to environmental problems. Even the Clinton administration has recognized the value of promoting environmental self-auditing when it issued a policy statement in December of 1995. It was a good first step forward, but in 2 years, we've seen only intimidation. Basically, the administration policy says that if companies come forward and voluntarily disclose violations, then EPA will not prosecute them as aggressively as they could otherwise. Not a real bonus. No evidentiary protection, no protection against citizen suits, and it is only a policy, not a rule, so it does not have the force of law nor does it have any impact on what the Justice Department or the FBI can do. And this policy can and will vary from State to State and company to company. It is now time for legislation. Senator Kay Bailey Hutchison has accepted the challenge and introduced a sound bill yesterday. This bill fully recognizes the sovereignty of the State. Mr. President, Senator Hutchison's bill, S. 866, will encourage environmental self-auditing by setting up incentives at the Federal level for those States with the provision. Nothing more. Americans get better environmental compliance. I urge my colleagues to give serious consideration to the proposal being advanced by Senator Hutchison.

Mr. LOTT

Mr. LOTT. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. LOTT

Mr. LOTT. What supplemental is that?

Mr. LOTT. Mr. President, I ask unanimous consent that at the hour of 2:05 p.m., the Senate begin 3 hours 55 minutes for debate only, to be divided equally between the two leaders or their designees, for discussions with respect to the supplemental appropriations bill, and that there be no motions in order during the approximately 4 hours of debate, other than a motion to adjourn by the majority leader or his designee. I further ask unanimous consent that it not be in order for the Chair to entertain any unanimous-consent requests with respect to consideration of any supplemental appropriations bill during the 4-hour period described above. And, finally, I ask unanimous consent that the Armed Services Committee be permitted to meet during the session of the Senate today, Wednesday, June 11. In support of that unanimous-consent request, before the Chair puts the request, I would just like to observe that I know there are Senators who would like to be heard on this issue, on the supplemental appropriations bill, about what is in it, the importance of it, how it can be resolved, comments on language that is included, a whole variety of statements that I am sure Senators would like to make to show their interest in and their suggestions as to how we deal with the supplemental appropriations bill. So I think to have 4 hours of debate makes good sense for the Senate to be able to hear what Senators have to say. I also indicate to our colleagues that there are a lot of discussions underway, a lot of meetings underway. Today, we have been in direct contact with the White House on how some of these issues can be resolved. I have had conversations with Senator Daschle. We are communicating with the House leadership to see exactly how they plan to proceed and when that would be. I understand perhaps there is a meeting right now at the White House on some of the provisions of this issue. So I think and I hope that we are making some progress and that we can find some way to bring this issue to fruition in the next few hours. Hopefully, we can have some action on it before we go out this week. But I think while we are doing that, we should be doing the business of the Senate, having hearings or markups in committees, particularly the Armed Services Committee, which is working on the defense authorization bill which we hope to have up next week in the Senate, and also so that we can continue our efforts to come to an agreement on how we deal with the supplemental appropriations, the Government shutdown provision language, the census language, to try to see how we can work out an agreement and what that language might be. It is very important we have an opportunity to do that this very afternoon. That is why I make the request. I urge it be considered and that it not be objected to.

Mr. LOTT. And you added a request of your own. Let me make sure I understand what it is. First, you are objecting to committee meetings, but you are asking consent that we take up what?

Mr. LOTT. I don't have one now, but I believe that during this time, while we are debating the issue, we could develop one and, as a matter of fact, I believe there is a meeting at the White House right now that would be the subject of this substitute and one we could agree on. Or I could do it this way. What I suggested yesterday, and where I think we actually should go, is a bill that provides the actual emergency disaster funds and the funds for DOD, but not the language and not the supplemental, just what has been referred to as a narrow disaster and emergency funding bill only, and the amount I am thinking about would be in the range of $3.9 billion. That way, we would get this issue resolved quickly while we continue to work on such things as the census language, where we hope and think maybe we can come to some agreement. We get this thing done; we get it done now. The House traditionally, as you very well know, is very sensitive about us acting before they do, but we could go ahead and have debate on this and take some action and hold it at the desk. I think this is one way to deal with this emergency. How would the Senator react to that?

Mr. LOTT. Mr. President, I believe I would object to that, but I have a counterproposal maybe we could consider. I do want to note also that the Finance Committee has requested consent to meet this afternoon, also to begin the process of markup on the reconciliation bill, which is required under the budget agreement. I believe it is going to be pretty bipartisan in its makeup, in terms of the spending provisions or the restraint on spending, whichever the case may be. And in order to have this legislation completed in the Finance Committee by, I believe it is the 18th of this month, we need to have them meeting. But I ask unanimous consent, sort of in the vein of what Senator Daschle was talking about, that the Senate now proceed to the consideration of Calendar No. 18, H.R. 581; and further, no amendments be in order, with the exception of one substitute amendment to be offered by the majority leader or his designee; that there be 1 hour total for debate on the bill and the amendment, to be equally divided in the usual form; and finally, that following the expiration or yielding back of time and the disposition of the substitute amendment, the bill be read a third time and the Senate proceed immediately to vote on passage of the bill, as amended, if amended, with no intervening action or debate.

Mr. LOTT. Mr. President, was there an objection to my request?

Mr. LOTT. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. LOTT. I appreciate the Democratic leader's comments on that. I hope that if we cannot find some other way to resolve the disagreements between now and 2 o'clock tomorrow, that he and I will consult maybe about the idea of doing just this tomorrow. And I do not want in any way to dampen the efforts that are underway to come to a broader total agreement. But in order to get this emergency addressed this week-- hopefully within the next 24 hours--I think this is the way that we want to consider doing it. I hope you will think about that between now and tomorrow and let us look at that as a possibility of what we might do at 2 o'clock tomorrow if something else has not already been worked out. I again thank the Senator for his comments. Mr. President, in view of the objection and the interests that we have, the committees meetings, the Finance Committee, the Armed Services Committee, the urgency of the work they are doing, I suggest the absence of a quorum.

Mr. LOTT

Mr. LOTT. Mr. President, I ask unanimous consent that at the hour of 2 p.m., the Labor Committee be discharged from further consideration of S. 419, a bill to prevent birth defects by developing and implementing new prevention and surveillance strategies and the Senate now proceed to its immediate consideration under the following limitation: one substitute amendment be in order to be offered by Senator Bond; that no other amendments be in order to the bill; and that there be 30 minutes equally divided for debate, with Senator Bond in control of 15 minutes and the ranking member in control of 15 minutes. Further, following the disposition of the amendment and the expiration or yielding back of time, the bill be read a third time and the Senate proceed to vote on passage of the bill, as amended, with no intervening action or debate.

Mr. LOTT

Mr. LOTT. Before the Chair puts the question, I say to the Democratic leader, I made the request that we recess until the hour of 6 p.m. He is putting the question. I wanted to make sure you heard.

Mr. LOTT. Mr. President, I ask unanimous consent that the Senate now stand in recess until the hour of 6 p.m.

Mr. LOTT

Mr. LOTT. Madam President, I move that the Senate stand in adjournment until 11 a.m. on Thursday, June 12, and I ask for the yeas and nays.

Mr. LOTT

Mr. LOTT. I suggest the absence of a quorum.

Mr. LOTT. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. LOTT

Mr. LOTT. Mr. President, I ask unanimous consent that the Record remain open until 5 p.m. today for Members to submit statements or for the introduction of legislation.

Mr. LOTT

Mr. LOTT. You would certainly be involved in that process.

Mr. LOTT. Well, I am trying to answer the question. I am not going to say here that it is going to be--I do not know, for instance, what the exact amount is, what the total amount is that would be alleged to, or would be needed for the disaster assistance, so how can I say what the number would finally be? But I am prepared to say this, that there is a difference between the total amount that is requested over a period of months and years for disaster and those parts of it that are urgent, that need to be addressed now, and that is the part I am really focused on. But I am not prepared to say it would be even limited just to that. I think we need to look at what is really needed right now and in the short term or in the foreseeable future and go with that number. I think we have to talk--are you on the appropriations committee?

Mr. LOTT. As a matter of fact, I have two answers. I have suggested to you today, to the leader on your side of the aisle and the Senators from North Dakota, there is a way we can get the emergency funding and do it quickly if we make up our minds and are determined to do that while we continue to work on the solutions here. But the other point with regard to the census, the reason why I make the explanation is to show once again an abundance--we can solve this. We can solve this problem, but there is a reason why we have to do it now. The die is being cast; the Census Bureau and the Department of Commerce have indicated we are going to do this. And if we wait until October to deal with this issue, we are going to be in a position of having to reverse something that is already set in place. They are getting ready to do it. So we do not have the luxury of saying, well, we will pick up on this in July or September or October. It would be a fait accompli by then. So that is a consideration. But we will continue to work on that, and we will find--I think we can find a way to do this this afternoon. Does the Senator from North Dakota wish to ask another question?

Mr. LOTT. I have two answers.

Mr. LOTT. I have two answers to that question.

Mr. LOTT. I have an answer.

Mr. LOTT. Sure. I will be glad to yield further for a question.