Statement of Senator Craig Thomas
Hearing on Evidentiary Privileges or Immunities for Voluntary Environmental Audits
Environment and Public Works Committee
October 30, 1997

Mr. Chairman, thank you for holding this hearing today. I welcome my colleague from Wyoming, Senator Enzi, and look forward to his testimony. It is important that we examine the concept of environmental self-audits. Well over half of the states have some kind of audit law or policy. The question is then, are we going to allow states to pursue this innovative concept to protect the environment, or is the Environmental Protection Agency (EPA) going to insist on its traditional command and control, outdated way of doing business?

In 1995, the Wyoming Legislature, under the leadership of now U.S. Senator Enzi, passed an environmental self-audit law. It was good legislation that would create incentives for businesses to identify and correct their pollution problems. It is important to emphasize that point; the intent of the Wyoming law and all audit laws is to protect the environment. They don't roll back other environmental standards. They take a different approach than the traditional environmental enforcement methods of the past, that is focusing on environmental protection and cleanup rather than penalties and sanctions. These laws will allow enforcement officials to focus their limited enforcement resources on "bad actors."

Unfortunately, earlier this year, EPA delayed the transfer of final authority over several pollution programs, including the Resource Conservation and Recovery Act (RCRA) and the Clean Air Act, to the Wyoming Department of Environmental Quality (DEQ) because of concerns over the state's environmental self-audit law. EPA also threatened to remove state primacy for other environmental laws. Aside from the very serious issue of trampling on the State of Wyoming's 10th Amendment rights, EPA's adversarial approach won't help us get any closer to achieving our mutual goal of protecting the environment. It is my understanding that EPA has backed off a bit and is now negotiating in good faith with the State of Wyoming. I strongly encourage EPA to continue that dialogue and reach a constructive agreement.

I am sure that we will hear today from EPA that federal legislation is not necessary because they have an administrative policy to encourage self-disclosure. Indeed, it is a good, first step forward. However, the EPA policy doesn't provide enough incentives to businesses for it to be an effective environmental protection tool. In a nutshell, the EPA's policy is that it will not prosecute businesses as aggressively as it could otherwise if a company comes forward and discloses a violation. The business is not protected from lawsuits or penalties. In fact, EPA strongly opposes providing privilege or immunity for these businesses, alleging that it will "let polluters off the hook." Nothing could be further from the truth. Under these laws, there is no protection for: willful and intentional violations; companies that do not promptly cure violations; companies asserting the law fraudulently. Further, companies can't hide information through audits that they would ordinarily have to disclose under other laws and regulations.

Our environment is cleaner than it was 25 years ago. In order to protect our natural resources for the next century, we need to follow the states' lead and utilize innovative concepts like self audit laws. I commend Senators Enzi and Hutchison for coming forward with this legislation and look forward to working with them on this important issue in the future.