OCTOBER 30, 1997

Those in favor of audit privilege law talk about helping the environment. They talk about requests in the states for "non regulatory" approaches to environmental protection. And, many State governments likewise talk of building partnerships with their businesses community to address environmental concerns -- in other words, trying carrots instead of sticks.

Nevertheless, today I am concerned that the legislation we are considering will help encourage a race to the environmental bottom when it comes to issues such as State enforcement of environmental protection laws by granting privileged status to environmental audit reports or material related to such reports.

There have long been calls for new approaches to environmental regulation other than enforcement and "command and control" legislation. And, voluntary incentives do sometimes work. I am particularly proud of my contribution to alternative approaches to environmental protection embodied in the Community Right to Know Law.

Under that law, polluters are only required to disclose to the community what is being spewed into the air, sent out as garbage, or dumped into the waterways. Because companies would rather not have to publicly explain the content of their toxic emissions, many companies have pro-actively changed their environmental behavior.

They have changed environmental protection from an " end of pipe" clean-up process to a pollution prevention process. As a result, industries have reduced toxic emissions more than 40% since 1988.

But the key to the success of this law is that the people in the community,those most immediately affected by the pollution, have a genuine right to know what pollution is being discharged in their community. It is their right.

However, audit privileges go in the other direction. They will turn what is now a right to know into a right to keep secrets -- potentially toxic secrets.

This proposal could frustrate investigations of environmental wrongdoings with legal maneuvering that have no place in protecting our environment.

Companies could keep secret needed information about how their actions may contaminate a local drinking water well. They could keep secret potential crimes from the public and employees. Contractors and others working at a factory would not be free to tell what is going on. While the Supreme Court has said that we cannot limit spending on political campaign because money is equal to speech, in the environmental area, we are saying corporate polluters will now have the right of concealment.

In Idaho, a surprise state inspection of a federal lab run by Lockheed Martin found illegal handling of toxic wastes. As the state inspectors left the plant they were given files and told they were privileged under the state audit law. Is it not surprising that the state of Idaho let their audit law sunset?

EPA has an audit policy that encourages audits without limiting risks to environmental protection. It waives certain penalties but does not allow companies to have an unfair advantage over their competitors.

I believe in states having flexibility in implementing the federal environmental laws. But those states that puts the polluter ahead of the public should lose their authority over those environmental statutes authorized to them.