[Congressional Record Volume 140, Number 108 (Monday, August 8, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: August 8, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. SIMON (for himself, Mr. Pell, Mr. Reid, Mr. Boren,  Ms. 
        Moseley-Braun,  and Mr. Jeffords):
  S. 2370. A bill to provide procedures for the contribution of 
volunteer United States military personnel to international peace 
operations; to the Committee on Armed Services.


  VOLUNTEER U.S. MILITARY PERSONNEL TO INTERNATIONAL PEACE OPERATIONS

  Mr. SIMON. Mr. President, I am introducing a bill titled, ``To 
Provide Procedures for the Contribution of Volunteer United States 
Military Personnel to International Peace Operations.'' It is 
cosponsored by Senator Pell, Senator Reid, Senator Boren, Senator 
Moseley-Braun, Senator Jeffords.
  Let me outline what has just happened. There are unfortunately other 
examples of what has happened.
  In April, the situation in Rwanda exploded. It did not explode on our 
television screens yet, but it exploded. And we knew things were 
happening that were not good.
  In early May, Senator Jim Jeffords, our colleague from Vermont, and I 
called General DeLauer, the Canadian general in charge of the small 
contingent of U.N. troops there. He said, ``If I can get 5,000 to 8,000 
troops here quickly we can stop this whole thing.''
  We immediately wrote a letter, Senator Jeffords and I, to President 
Clinton with a copy to the Secretary of State, Warren Christopher, and 
a copy to Assistant Secretary George Moose, urging that action be taken 
quickly. On May 17, the U.N. Security Council authorized up to 5,500 
troops to go to Rwanda.
  On June 22, Secretary General Boutros Boutros-Ghali said it would 
take 3 months to get 5,500 troops there. And shortly after that, and I 
do not remember all the details on dates, but we held a hearing and I 
was in phone conversation with people both from the State Department 
and the Defense Department. At one point, there was an indication that 
the United States was willing to take a battalion from Mali to Rwanda. 
and at one point, while we, the nations of the world, were kind of 
spinning our wheels doing nothing, and things were getting worse 
and worse in Rwanda, the French, to their credit, made a decision to 
send 2,000 troops to Rwanda and within 72 hours those troops were 
there.

  But, in the meantime, things were getting worse and worse and now we 
read in the papers there may have been as many as 1 million people 
killed. I do not think anyone will ever know the precise total. But 
whether it was a quarter of a million or a half million or a million, 
most of it could have been prevented had we moved quickly.
  The New York Times today, in an editorial on the Rwanda situation, 
has these final words:

       The world had neither the means nor the will to respond in 
     April, the critical early stage of Rwanda's descent into 
     genocide. It has been a terrible learning process, and yet 
     crueler lessons may lie ahead.

  What do we do about it? Senator Pell, Senator Reid, Senator Boren, 
Senator Moseley-Braun, and I are suggesting this possibility. 
Obviously, this is not set in stone. It will have to be refined. We are 
suggesting there would be 3,000 volunteers among those who serve in our 
Armed Forces who would be paid some kind of incremental amount--10 
percent, 15 percent--for volunteering, who would be available on 24-
hour notice whenever the Security Council acted on something and the 
President of the United States approved.
  The assumption here is if the United States has 3,000 troops 
available--volunteers again, I stress, volunteers from within our Armed 
Forces--the Germans would do the same, the French, the Brits, the 
Japanese, and other countries might have smaller amounts. But we could 
respond immediately to a situation like in Rwanda.
  The reality is what the New York Times says in this editorial. I ask 
unanimous consent to have this editorial printed in the Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

                [From the New York Times, Aug. 8, 1994]

                        Rwanda's Very Long Haul

       It has begun to dawn on policy makers, if not yet the 
     public, that the crisis in Rwanda may take years to resolve. 
     Relief workers in Zaire, where a million Rwandans have fled, 
     see little hope for a prompt return home by Hutus fearing 
     reprisal massacres by Tutsis, who now dominate the new 
     Government in Kigali, Indeed, instead of getting better, 
     matters could become worse, spreading conflict, hunger and 
     uprooted peoples through an entire region.
       It would be wise for the Clinton Administration to prepare 
     Americans for what may be a very long haul in Central Africa. 
     A small contingent of U.S. troops is already assisting the 
     United Nations operation in Rwanda, and Washington has 
     promised to come up with $270 million in new aid. If the case 
     is fairly made, if burdens are fairly shared with others, and 
     if civil peace can be maintained, this is an effort that 
     Americans can be persuaded to support.
       The immediate, compelling consideration is humanitarian. It 
     affronts decency to do nothing as children starve in squalid 
     refugee camps. But other interests are affected when four 
     million people flee their homes, half of them across 
     frontiers, in a country of just under eight million people 
     where, today, no food grows in vacated farms. Desperation 
     will breed new wars, sending shock waves through tense 
     neighboring states, notably Burundi and Zaire. The fearful 
     prospect of more upheavals calls out for energetic preventive 
     diplomacy.
       The place to start is Kigali, where a new Government 
     lacking even telephones, desks and offices rules a country 
     lacking people. Creditably, the victorious Rwanda Patriotic 
     Front has established a multi-party Cabinet that is led by a 
     President and Prime Minister who are both Hutu. But real 
     power is held by minority Tutsis, notably Vice President and 
     Defense Minister Paul Kagame, who was the chief strategist of 
     the rebel victory.
       The new regime is speaking the right words about 
     reconciliation. Yet these have to be set against the 
     scattered killings of returning Hutus, as reported in The 
     Times by Raymond Bonner, and Government plans to try 
     thousands of civilians as war criminals. There could also be 
     another nightmare if 500,000 Rwandans, most of them Hutu, 
     flee a security zone created by French peacekeepers, who are 
     due to depart by Aug. 22.
       Keeping to that timetable is a problem, since the French 
     are supposed to be replaced by a 5,500-strong U.N. 
     peacekeeping force. But less than a thousand Canadian and 
     African troops are now in Rwanda, with the rest still to be 
     trained to protect convoys and reassure returning villagers. 
     A small contingent of U.S. troops is under direct U.S. 
     command in Kigali.
       By any measure, the prospects are grim: an untested new 
     Government, a collapse of basic services, reprisal killings, 
     an improvised international force and a depopulated country, 
     with the planting season supposed to begin next month.
       Meantime, mingling with two million refugees in Zaire and 
     Tanzania are remnants of the defeated Rwandan Army, including 
     units responsible for the worst massacres. Commanders talk of 
     regrouping and of border war from sanctuaries in Zaire; they 
     also threaten to shoot foreign relief workers who dare urge 
     Rwandans to return home. And the same despicable radio 
     station that clamored for Tutsi blood before the rebel 
     victory continues its broadcasts from a mobile base.
       What could make an enormous difference is a real 
     international presence in Rwanda, to reassure and to witness. 
     Now there are reports of killings in adjacent Burundi, with a 
     similar ethnic mix and with the same history of strife. The 
     world had neither the means nor the will be respond in April, 
     the critical early stage of Rwanda's descent into genocide. 
     It has been a terrible learning process, and yet crueler 
     lessons may lie ahead.

  Mr. SIMON. ``The world had neither the means nor the will to 
respond.'' That is true. We just do not have the mechanism. And the 
great threat today is not nuclear annihilation. The great threat is 
chaos. It is instability. If we had moved quickly in Rwanda, hundreds 
of thousands of lives would have been saved. And there is a spillover 
effect. What is going to happen in Burundi? What is going to happen in 
Tanzania? I do not know. I hope nothing happens in any of these areas.
  I have been on the phone two or three times to our former Senate 
colleague, Senator Bob Krueger, who is now Ambassador to Burundi, right 
next door. So far, every indication is of stability there. But people 
around the world should know that the United Nations can move and move 
quickly. The only alternative to that is for the United States, as the 
only superpower, to be what everybody says we should not be, the 
policeman of the world. I think this makes sense.
  Again, this would be up to 3,000 people who are within our Armed 
Forces, who would volunteer and presumably get an additional 10 or 15 
percent, but take additional risks--there is no question about it. And 
they might be sent into Bosnia. They might be sent into Rwanda. Who 
knows where the next trouble spot might be around the world?
  So I am pleased to be joined by Senator Pell, Senator Reid, Senator 
Boren, and Senator Moseley-Braun in introducing this legislation here 
today.
                                 ______

      By Mr. HATFIELD:
  S. 2371. A bill to encourage owners and operators of facilities to 
conduct voluntary internal audits of the compliance of the facilities 
with applicable Federal environmental laws, and for other purposes; to 
the Committee on Environment and Public Works.


                   environmental audit protection act

  Mr. HATFIELD. Mr. President, I rise today to introduce legislation to 
create new incentives for business and industry to police their own 
environmental actions. My bill, the Environmental Audit Protection Act, 
would create a very limited legal privilege for businesses that conduct 
environmental audits and take corrective action to avoid violation of 
environmental laws.
  In 1993, Oregon became the first State to codify a privilege for 
environmental audits. Under the Oregon law, an internal environmental 
audit, undertaken voluntarily, cannot be used against the company in a 
trial or administrative action, unless efforts to comply were not 
promptly initiated and pursued with reasonable diligence or the 
privilege is invoked for fraudulent purposes. The Oregon law garnered 
support not only from the business community but also from the 
department of environmental quality and the State attorney general. 
These supporters have told me of the positive effects this law has had 
in my State.
  Several other States have created a privilege, including Colorado, 
Indiana, and Kentucky, and another dozen States are considering bills 
to create the privilege. Some of these laws, such as Colorado's, create 
a broader right based on disclosure of the results of an audit.
  My bill is based on the Oregon law, and it strikes a good balance 
between protecting a business's right to self-police and ensuring 
environmental compliance. There are clear limits on the privilege. The 
privilege would cease to exist if used for fraudulent activities or if 
waived by a company.
  Most importantly, the privilege is moot if the company does not 
promptly act to achieve compliance if a violation is discovered in an 
audit. This fact creates a strong incentive for companies to 
immediately correct any potential or real problem.
  Moreover, my bill would not bar any enforcement action for any 
environmental violation. The privilege only extends to information in 
the audit report, not to the violation itself. No environmental law is 
decriminalized, and the enforcement agencies are not barred from 
pursing action.
  Finally, even if the company proceeds to immediately correct a 
violation, the privilege is not absolute. A prosecutor is allowed 
access to an environmental audit if it contains evidence relevant to an 
environmental crime that is not otherwise available without substantial 
cost or delay.
  The new law has had a positive impact on the environmental practices 
of companies in Oregon. The Oregon law has increased a company's 
flexibility in learning about and correcting compliance problems in 
several ways. First, it has expanded employee involvement; this has 
made audits more complete and accurate and has helped employees connect 
their daily jobs with environmental compliance.

  Second, it has created new incentives for companies to spend money on 
compliance. The potential loss of the privilege is a strong motivator 
for companies to quickly allocate whatever resources are needed to 
correct a potential violation.
  Third, it has encouraged companies to create more systematic 
approaches to environmental activities. Companies can now keep records, 
and have had much greater success in dealing with chronic problems.
  Last, but by no means least, lawyers are no longer needed in Oregon 
to shield audit documents under the attorney-client privilege. Removing 
lawyers from this process has substantially reduced the cost of 
auditing and has created a better flow of information with companies.
  Mr. President, self-enforcement by responsible companies is a vital 
issue. It is an impossible task for the Environmental Protection Agency 
to find and prosecute every environmental violation. I believe that 
most companies want to police themselves; it is both morally right and 
less costly to find and correct a violation than to face regulatory, 
civil and criminal action. Incentives for self-enforcement will help 
free up the very limited resources in the Federal and State 
environmental and enforcement agencies to enforce the most severe, 
egregious, and dangerous violations of our environmental laws.
  I am introducing this bill to begin a dialog in the Senate on this 
issue. Last week, the Senate urged the EPA to seriously consider the 
benefits of self-evaluation that come from privilege by passing a 
sense-of-the-Senate resolution as part of the VA-HUD appropriations 
bill. I believe that this debate should take place in Congress as well 
as at the EPA, and I hope my bill is a responsible beginning for our 
conversation on this issue.
  Mr. President, I have received a number of letters of support for 
this bill, and I ask that they be included in the Record immediately 
following my remarks. Furthermore, I ask that the text of my bill be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 2371

       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 Audit 
     Protection Act''.

     SEC. 2. PURPOSE.

       The purpose of this Act is to encourage owners and 
     operators of facilities, and other persons conducting 
     activities, regulated under applicable environmental laws to 
     conduct voluntary internal environmental audits of their 
     compliance programs and management systems and to assess and 
     improve compliance with applicable environmental laws by 
     protecting the confidentiality of communications relating to 
     voluntary internal environmental audits.

     SEC. 3. DEFINITIONS.

       As used in this Act:
       (1) Applicable environmental law.--The term ``applicable 
     environmental law'' means--
       (A) the Federal Insecticide, Fungicide, and Rodenticide Act 
     (7 U.S.C. 136 et seq.);
       (B) the Toxic Substances Control Act (15 U.S.C. 2601 et 
     seq.);
       (C) the Federal Water Pollution Control Act (33 U.S.C. 1251 
     et seq.);
       (D) the Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq.);
       (E) title XIV of the Public Health Service Act (commonly 
     known as the ``Safe Drinking Water Act'') (42 U.S.C. 300f et 
     seq.);
       (F) the Noise Control Act of 1972 (42 U.S.C. 4901 et seq.);
       (G) the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.);
       (H) the Clean Air Act (42 U.S.C. 7401 et seq.);
       (I) the Comprehensive Environmental Response, Compensation, 
     and Liability Act of 1980 (42 U.S.C. 9601 et seq.);
       (J) the Emergency Planning and Community Right-To-Know Act 
     of 1986 (42 U.S.C. 11001 et seq.); and
       (K) the Pollution Prevention Act of 1990 (42 U.S.C. 13101 
     et seq.).
       (2) Environmental audit.--The term ``environmental audit'' 
     means a voluntary, internal, and comprehensive evaluation of 
     a facility or an activity at a facility regulated under an 
     applicable environmental law, or of a management system 
     related to the facility or activity, that--
       (A) is designed to identify and prevent noncompliance and 
     to improve compliance with an applicable environmental law; 
     and
       (B) is conducted by the owner or operator of the facility, 
     by an employee of the owner or operator, by another person 
     conducting an activity regulated under an applicable 
     environmental law, or by an independent contractor.
       (3) Environmental audit report.--
       (A) In general.--The term ``environmental audit report''--
       (i) means a report comprised of 1 or more components, each 
     labeled ``Environmental Audit Report: Privileged Document'', 
     that is prepared as a result of an environmental audit; and
       (ii) includes any supporting information (such as a field 
     note or record of observations, finding, opinion, suggestion, 
     conclusion, draft, memorandum, drawing, photograph, computer-
     generated or electronically recorded information, map, chart, 
     graph, or survey) that is collected or developed for the 
     primary purpose and in the course of the environmental audit.
       (B) Component.--As used in subparagraph (A), the term 
     ``component'' means any of the following 3 items:
       (i) An audit report prepared by the auditor, which may 
     include information on the scope of the audit, information 
     gained from the audit, and conclusions and recommendations 
     relating to the audit, together with exhibits and appendices.
       (ii) A memorandum or other document that analyzes a portion 
     or all of the audit report and that may include information 
     concerning the implementation of the report.
       (iii) An implementation plan that addresses the correction 
     of past noncompliance, the improvement of current compliance, 
     and the prevention of future noncompliance.

     SEC. 4. PROTECTION OF ENVIRONMENTAL AUDITS.

       (a) General Rule.--
       (1) In general.--Except as provided in paragraph (2) and 
     subsections (b) and (c), an environmental audit report shall 
     not be subject to discovery and shall not be admitted into 
     evidence in any civil or criminal action or administrative 
     proceeding before a Federal court or agency.
       (2) Exclusion of certain types of information.--Paragraph 
     (1) shall not apply to--
       (A) any document, communication, data, report, or other 
     information required to be collected, developed, maintained, 
     reported, or otherwise made available to a regulatory agency 
     pursuant to an applicable environmental law, or other 
     Federal, State, or local law, ordinance, regulation, permit, 
     or order;
       (B) information obtained by observation, sampling, or 
     monitoring by any regulatory agency; or
       (C) information obtained from a source independent of the 
     environmental audit.
       (b) Waiver.--Subsection (a) shall not apply with respect to 
     an environmental audit report to the extent that subsection 
     (a) is waived expressly or by implication by the owner or 
     operator of a facility, or other person conducting an 
     activity, that is regulated under an applicable environmental 
     law, who prepared or caused to be prepared the environmental 
     audit report.
       (c) Inapplicability of General Rule.--
       (1) Civil and administrative proceedings.--
       (A) In general.--In a civil action or an administrative 
     proceeding, subsection (a) shall not apply to an 
     environmental audit report, or a portion of the report, if--
       (i) subsection (a) is invoked for a fraudulent purpose; or
       (ii)(I) the report or portion provides evidence of 
     noncompliance with an applicable environmental law; and
       (II) appropriate efforts to achieve compliance with the law 
     were not promptly initiated and pursued with reasonable 
     diligence.
       (B) Determination of inapplicability.--In determining 
     whether subsection (a) applies to a report or portion of a 
     report, a court or administrative law judge shall conduct an 
     in camera review of the report or portion of the report.
       (2) Criminal proceedings.--
       (A) In general.--In a criminal proceeding, subsection (a) 
     shall not apply to an environmental audit report, or a 
     portion of the report, if--
       (i) subsection (a) is invoked for a fraudulent purpose;
       (ii)(I) the report or portion provides evidence of 
     noncompliance with an applicable environmental law; and
       (II) appropriate efforts to achieve compliance with the law 
     were not promptly initiated and pursued with reasonable 
     diligence; or
       (iii)(I) the report or portion contains evidence relevant 
     to the commission of an offense under an applicable 
     environmental law;
       (II) the Attorney General has a compelling need for the 
     information;
       (III) the information is not otherwise available; and
       (IV) the Attorney General is unable to obtain the 
     substantial equivalent of the information by any means 
     without incurring unreasonable cost and delay.
       (B) Determination of inapplicability of general rule.--In 
     determining whether subsection (a) applies to a report or 
     portion of a report, a court or administrative law judge 
     shall conduct an in camera review of the report or portion of 
     the report in accordance with subparagraph (C).
       (C) In camera review proceedings.--
       (i) In general.--If the Attorney General has probable cause 
     to believe that an offense has been committed under an 
     applicable environmental law based on information obtained 
     from a source independent of an environmental audit report, 
     the Attorney General may obtain an environmental audit 
     report, or a portion of the report, for which subsection (a) 
     is invoked pursuant to a search warrant, criminal subpoena, 
     or discovery in a criminal proceeding. The Attorney General 
     shall immediately place the report under seal and shall not 
     review or disclose the contents of the report.
       (ii) Filing of petition.--Not later than 30 days after the 
     Attorney General obtains an environmental audit report, or a 
     portion of the report, under clause (i), the owner or 
     operator, or other person conducting an activity regulated 
     under an applicable environmental law, who prepared or caused 
     to be prepared the report, may file with the court a petition 
     requesting an in camera hearing on whether subsection (a) 
     applies to the environmental audit report or portion. Failure 
     by the owner or operator or other person to file the petition 
     shall constitute a waiver of subsection (a).
       (iii) Scheduling order.--As soon as practicable after the 
     filing of the petition, the court shall issue an order 
     scheduling an in camera hearing on the petition not later 
     than 45 days after the filing of the petition.
       (iv) Review by the attorney general.--

       (I) In general.--An order described in clause (iii) shall 
     allow the Attorney General to remove the seal from the report 
     to review the report and shall place appropriate limitations 
     on the distribution and review of the report to protect 
     against unauthorized disclosure. The Attorney General may 
     consult with any enforcement agency regarding the contents of 
     the report as the Attorney General determines is necessary to 
     prepare for the in camera hearing.
       (II) Use of information from review.--The information used 
     in preparation for the in camera hearing shall not be used in 
     any investigation or in any proceeding against the defendant, 
     and shall be kept confidential--

       (aa) unless and until the information is found by the court 
     to be subject to disclosure under subparagraph (A); or
       (bb) unless the person using the information demonstrates 
     that the information was obtained from a source independent 
     of the environmental audit report.
       (v) Stipulations by the parties.--With respect to 
     proceedings under this subparagraph, the parties may at any 
     time stipulate to entry of an order directing that subsection 
     (a) does or does not apply to specific information contained 
     in an environmental audit report.
       (3) Relevance requirement.--Upon making a determination 
     under paragraph (1) or (2) that an environmental audit 
     report, or a portion of the report, should be subject to 
     disclosure, the court may require the disclosure of only such 
     portions of the report as are relevant to an issue in dispute 
     in the proceeding.
       (d) Burdens of Proof.--
       (1) In general.--Except as provided in paragraphs (2) and 
     (3), a party invoking the protection of subsection (a) shall 
     have the burden of proving the applicability of subsection 
     (a), including, if there is evidence of noncompliance with an 
     applicable environmental law, the burden of proving that 
     appropriate efforts to achieve compliance were promptly 
     initiated and pursued with reasonable diligence.
       (2) Fraud in a civil action.--If a party seeks discovery 
     under subsection (c)(1)(A)(i), the party shall have the 
     burden of proving that subsection (a) is invoked for a 
     fraudulent purpose.
       (3) Attorney general.--If the Attorney General seeks 
     discovery under subsection (c)(2)(A)(iii), the Attorney 
     General shall have the burden of proving the matters 
     described in subsection (c)(2)(A)(iii).

     SEC. 5. EFFECT ON OTHER RULES.

       Nothing in this Act shall limit, waive, or abrogate the 
     scope or nature of any statutory or common law rule regarding 
     discovery or admissibility of evidence, including the 
     attorney-client privilege and the work product doctrine.

     SEC. 6. APPLICABILITY.

       This Act shall apply to each Federal civil or criminal 
     action or administrative proceeding that is commenced after 
     the date of enactment of this Act.
                                              Oregon Department of


                                        Environmental Quality,

                                                   August 8, 1994.
     Hon. Mark O. Hatfield,
     U.S. Senator, Hart Senate Office Building, Washington, DC.
       Dear Senator Hatfield: Thank you for the opportunity to 
     comment on voluntary self-audit legislation you are 
     introducing today, legislation which I understand to be 
     identical to Oregon law enacted in the 1993 legislative 
     session. I think Oregon's approach is different from other 
     states' legislation because it provides safeguards against 
     abuse.
       Let me begin by noting that the EPA nor the states have the 
     resources to inspect the regulated community on a regular and 
     frequent basis as we think appropriate. Consequently, we need 
     to encourage those programs which will provide incentives to 
     the regulated community to comply even without fear of 
     inspection and enforcement. I believe, if properly crafted, 
     limited privileging environmental self-audits can be one of 
     those incentives.
       Since environmental audits are not required, we don't want 
     to create disincentives to performing them. (I recognize that 
     if such audits became mandatory we would have a completely 
     different situation.) And while none of us want to let an 
     unscrupulous operator use an audit to avoid enforcement, I 
     think we know that a really unscrupulous operator will either 
     not conduct an audit in the first place or have the results 
     first sent to their lawyer and then forwarded to them under 
     attorney-client privilege.
       Let me turn to the Oregon law and how I think it overcomes 
     these concerns. First, the privilege is extended only to the 
     information contained in the audit (at least for us this will 
     most likely be a source of information that they knowingly 
     violated the law and are subject to criminal enforcement) and 
     not to the violation itself. Consequently, if we are able to 
     document the violation independent of the audit, we are able 
     to take any and all appropriate enforcement actions.
       Second, and most importantly, the audit remains privileged 
     only if the entity is implementing the recommendations and 
     correcting the violations. If the corrective actions are not 
     being implemented the privilege disappears, and we are able 
     to use the audit to help prove our case. The method our law 
     outlines for determining if the corrective actions are being 
     taken is for the judge hearing the case to review the audit 
     in camera and make the determination.
       The beauty of this latter provision, it seems to me, is 
     that it provides for a real incentive for anyone conducting 
     an environmental audit to be sure they follow any and all 
     recommendations to correct problems--whether or not we are 
     going to be there to do an inspection. My guess is that there 
     will be many more audits conducted than we will discover 
     through our normal inspection and enforcement process. 
     Consequently, we need to build in incentives to get these 
     audits to produce environmental improvements. Knowing that 
     the audit could prove to be the ``smoking gun'' in a future 
     enforcement action if the recommendations are not followed 
     provides just the incentive we need.
       I might add, the Oregon law was developed out of a lot of 
     hard negotiations involving us, the Attorney General, 
     district attorneys, municipalities and members of the 
     environmental community along with the two main business 
     organizations in the state.
       Thank you for the opportunity to offer support for your 
     effort to make Oregon law the law for the whole nation.
           Sincerely,
                                                      Fred Hansen,
                                                         Director.
                                  ____

                                                   August 2, 1994.
     Re Legislation for a federal environmental audit privilege.
     Hon. Mark. O. Hatfield,
     U.S. Senator, Hart Senate Office Building, Washington, DC.
       Dear Senator Hatfield: I understand that you are favorably 
     inclined to introduce legislation in Congress for a federal 
     environmental audit privilege. Your bill would be modeled 
     along the lines of the law Associated Oregon Industries 
     pushed through the Oregon Legislature last year. On behalf of 
     Associated Oregon Industries' 2,100 primary members and 
     13,000 associate members, I am pleased at this prospect and 
     encourage you to actively pursue a federal law protecting 
     environmental audit reports.
       As a whole, Oregon industry works hard to comply with 
     today's complex and voluminous environmental laws. Perfect 
     compliance at all times, however, is a virtually unattainable 
     objective for large facilities. Compliance is made all the 
     more difficult when reports, generated during a company's 
     voluntary environmental audit, are not confidential. Prior to 
     Oregon's law, the first of its kind in the nation, 
     environmental agencies could obtain a company's audit reports 
     and use them in an enforcement action. By making 
     environmental audit reports privileged, Oregon's law protects 
     companies from ``hanging themselves'' as long as actions are 
     taken to correct any violations found.
       Though Oregon's regulated companies are reacting positively 
     to the new state protections, Oregon's new law does not 
     complete the protection circle. The Environmental Protection 
     Agency (EPA) is not bound by Oregon's environmental audit 
     privilege and occasionally inspects Oregon companies. This is 
     why a federal environmental audit privilege is needed.
       On July 27, 1994, I testified before the Environmental 
     Protection Agency on the environmental audit privilege 
     concept. The EPA is currently reviewing its policies on 
     environmental audits. Enclosed is a copy of my testimony 
     referencing the Oregon experience for your use.
       Thank you for your efforts. I am pleased to be working with 
     you.
           Sincerely,
                                                  James W. Whitty,
                                              Legislative Counsel.
                                  ____



                                Portland General Electric Co.,

                                     Portland, OR, August 4, 1994.
     Subject: Legislation on environmental audit privilege.

     Hon. Mark O. Hatfield,
     Hart Senate Office Building, U.S. Senate, Washington, DC.
       Thank you for your leadership in sponsoring this important 
     environmental legislation. A national policy is much needed 
     to provide the incentive for companies to voluntarily achieve 
     higher levels of environmental compliance through self-
     auditing and disclosure without the threat that internal 
     company communications will be used against them. This bill 
     embodies the qualities of a rigorous but workable regulatory 
     framework which Portland General Electric Company (PGE) 
     supports.
       To that point, PGE has an Environmental Policy that 
     emphasizes open communication within all our operating 
     divisions concerning environmental problems. We have been 
     conducting formal Environmental Compliance Reviews of our 
     facilities for several years with written documentation of 
     results going to managers and officers. In addition, we 
     report monthly on any compliance exceedances. Since the 
     development of Oregon's Environmental Audit Privilege, we 
     have increased confidence that open written communications 
     can, in fact, be used to resolve environmental problems.
       Federal legislation similar to Oregon's will have a 
     positive impact on industry to take proactive steps to 
     improve compliance with regulations and will subsequently 
     improve environmental quality. Removing the threat of having 
     audit information used by regulatory agencies will encourage 
     written documentation. This, in turn, will greatly improve 
     internal communication and resolution of environmental 
     problems.
                                                   Fred D. Miller,
                                    Vice President Public Affairs.
                                  ____



                                           Oregon Steel Mills,

                                      Portland, OR, July 29, 1994.
     Hon. Mark Hatfield,
     Hart Senate Office Building, Washington, DC.
       Dear Senator Hatfield: It is my understanding that you are 
     preparing to introduce a bill for a federal environmental 
     audit privilege in the near future. I am in favor of this 
     concept and wholly support your furtherance of this issue.
       The enactment of such a law would complete the protection 
     that the state of Oregon has provided in its audit privilege 
     statute.
       This type of legislation will go a long way towards 
     encouraging environmental compliance in areas not even looked 
     at under current laws.

                                                    Sincerely,

                                                Jerry O. Richartz,
                          Corporate Manager, Energy & Environment.
                                  ____



                                                    Tektronix,

                                                    July 29, 1994.
     Senator Mark O. Hatfield,
     Hart Senate Office Building, Washington, DC.
       Dear Senator Hatfield, I am writing to lend support for the 
     environmental audit privilege bill that you are about to 
     introduce.
       As Director of the Corporate Environmental, Safety and 
     Health groups at Tektronix for the past twenty-five years it 
     has been our policy to do continuous audits both internally 
     and with our vendors (reclaim, disposal, and transportation). 
     I believe this has been a critical part of our proactive 
     program.
       If we were to not able ``find and fix-it'' and document 
     that we had followed through without fear of enforcement or 
     having our records used against us I am sure we would change 
     the way we do things.
       As you know Oregon is a leader in the country in 
     environmental stewardship, this is not an accident, industry, 
     environmental interest groups, academia, and regulatory 
     agencies have worked closely together to protect the 
     environment and keep Oregon in a leadership position.
       I doubt you will find this cooperative working relationship 
     anywhere else, enforcement as a primary regulatory tool 
     simply is not effective. We must be able to be critical of 
     ourselves and work on constant improvement.
       I applaud your efforts and wish you success.
                                                  Frank L. Deaver,
                        Director, Corporate Environmental Affairs.
                                  ____



                                           Pope & Talbot, Inc.

                                        Halsey, OR, August 8, 1994
     Senator Mark O. Hatfield,
     Hart Senate Office Building, Washington, DC.
       Dear Senator Hatfield: We understand you are considering a 
     bill to adopt the Oregon Environmental Audit Privilege as a 
     federal law. Our company is in preparation for an 
     environmental audit this month at this site and we intend to 
     take any necessary corrective action based on the audit 
     findings. Frankly, I think the Oregon law encourages 
     businesses to conduct audits so that potential problems can 
     be identified and corrected.
       Pope & Talbot encourages and supports extending the Oregon 
     Audit Privilege nationally. It makes good sense from both a 
     business perspective and an environmental perspective.
           Sincerely,
                                             William O. Dameworth,
                                            Environmental Manager.
                                  ____



                                       Wacker Siltronic Corp.,

                                     Portland, OR, August 2, 1994.
     Re Environmental audit privilege.

     Senator Mark O. Hatfield,
     Hart Senate Office Building,
     Washington, DC.
       The Honorable Senator Hatfield: Oregon has a rich history 
     of leadership in environmental affairs. Where the trend of 
     increasingly prescriptive environmental regulation followed 
     by ``get tough'' enforcement programs has been pursued by 
     other states and the administration, Oregon has always been 
     more protective. The latest example has come to be known as 
     Oregon's ``Environmental Audit Privilege.''
       Wacker Siltronic Corporation offers encouragement and 
     support as you prepare to introduce a bill which will extend 
     the environmental audit privilege across the nation. Your 
     bill will share with the nation, Oregon's example of how to 
     improve environmental awareness and encourage responsible 
     actions.
       Oregon has built sound environmental programs based upon 
     the cooperative efforts of government, industry and public 
     interests generally represented by environmental groups. 
     Collectively, we have built a regulatory program that seeks 
     not only to meet federal requirements, but to encourage 
     industry to become environmental leaders and share this 
     valuable information freely.
       Promoting, encouraging, and becoming an environmental 
     leader is no small task. It takes diligence and years of 
     effort from dedicated individuals using the best of tools. 
     One of the best tools available to teach people regulatory 
     requirements and how to care for the environment is the 
     environmental audit.
       Environmental audits are a primary tool for improvement of 
     management methods, recordkeeping systems, training, and 
     facility design. Environmental audits assure all mandated 
     programs are in place, pollution control equipment is 
     functioning at peak operating efficiency and swift correction 
     of operational and administrative deficiencies occurs. Audits 
     provide the learning opportunities that train people to see 
     the difference between ``getting by'' and ``well managed'' 
     operations.
       It is the use of self audit documents as proof of non-
     compliance and as a primary enforcement tool by environmental 
     agencies and the Department of Justice which is most 
     troubling to Oregonians.
       Realizing that environmental audit activities should be 
     encouraged not discouraged, Oregon has taken a stand. The 
     Oregon Legislature, led by the Associated Oregon Industries 
     passed the Environmental Crimes Act, a section of which 
     protects audit documents from discovery under most 
     circumstances. This has become known as the ``audit 
     privilege''. Oregonians felt strongly that there should not 
     be a downside risk associated with doing your best for the 
     environment.
       This level of environmental protection can only occur if we 
     all have a high level of environmental awareness, monitor our 
     own performance and correct what ever needs attention without 
     delay. Taking responsible actions through the environmental 
     audit will assure our future and the future of Oregon.
       Oregonians are not asking for special privilege nor 
     attempting to extend special privilege to others. Your help 
     is needed to encourage industries throughout the United 
     States to conduct environmental audits. Help provide the 
     opportunity for them to manage better, improve facilities and 
     methods, and provide the learning experiences necessary to 
     protect the environment we share.
           Respectively,
     Thomas C. McCue,
         Environmental, Health and Safety Manager and Chair, 
           Environment Committee, Associated Oregon Industries.
                                  ____



                                              Ontario Produce,

                                                   August 1, 1994.
     To Senator Mark O. Hatfield.
       I would like to give my support for your bill providing for 
     a federal environmental audit privilege similar to the Oregon 
     law. It would allow businesses to realistically correct 
     problems without creating more problems for themselves.
           Very truly yours,
                                                    Robert Komoto.
                                  ____



                                Louisiana-Pacific Corporation,

                                     Portland, OR, August 2, 1994.
     Re Environmental Audit Protection Act.
     Hon. Mark O. Hatfield,
     U.S. Senate, Washington, DC.
       Dear Senator Hatfield: I am writing to express support for 
     the Environmental Audit Protection Act which I understand you 
     will introduce next week. Environmental auditing has been an 
     effective tool in enhancing compliance with environmental 
     laws at facilities operated by Louisiana-Pacific Corporation 
     (L-P). However, the sensitive nature of documents associated 
     with environmental audits can deter auditing since the 
     disclosure of such documents during litigation may expose 
     parties to increased liabilities.
       Currently, the only effective means by which an 
     organization can protect the confidentiality of environmental 
     audits is to use a system where information is provided to an 
     attorney for the preparation of legal advice. In other words, 
     the process must be structured to produce communications 
     protected by the attorney-client privilege. Although in many 
     respects it is beneficial to have such information presented 
     to counsel, it also reduces the flexibility available to 
     organizations that wish to audit their operations in a 
     confidential manner. Forcing organizations to resort to 
     attorney participation in the audit process necessarily 
     increases the cost of such auditing and may reduce the 
     frequency as well. The extra cost also tends to discourage 
     businesses from auditing their operations.
       Of particular concern to organizations that contemplate 
     environmental auditing is whether they will be exposed to 
     enhanced liability because they decide to affirmatively seek 
     out problems that need to be corrected. Several parties have 
     sought discovery of environmental audit documents from L-P 
     during legal proceedings. Given the sensitivity of 
     environmental issues, there is a sincere concern that such 
     documents could be used abusively by private litigants unless 
     protected. Government agencies have also requested audit 
     documents during proceedings. Despite assurances and policies 
     on the part of government agencies stating that they will 
     generally not seek audit documents, L-P is aware of only one 
     instance in which an agency withdrew a request in response to 
     concerns that such requests discourage auditing.
       The protection of the confidentiality of environmental 
     audits should promote the public interest by enhancing 
     compliance with environmental laws. Although organizations 
     are under a duty to comply with such laws in the first 
     instance, an evaluation by an outside party with a fresh 
     perspective can do much to discover problems that otherwise 
     would go uncorrected. In response, to criticisms that an 
     environmental audit privilege would enable organizations to 
     conceal problems, it is doubtful that any organization 
     willing to tolerate noncompliance would even start an audit 
     program. It should also be emphasized that the Environmental 
     Audit Protection Act acts only to protect a limited sphere of 
     documents and will not enable a company to hide otherwise 
     discoverable evidence. The Act will merely allow an 
     organization to protect the confidentiality of documents that 
     were created for the sole purpose of correcting problems.
       Thank you for introducing this important bill. If anyone at 
     L-P can provide you with information or otherwise provide 
     assistance, please advise accordingly.
           Very truly yours,
                                               Bert P. Krages, II.
                                  ____



                               Stoel Rives Boley Jones & Grey,

                                     Portland, OR, August 1, 1994.
     Re Federal Environmental Audit Privilege Legislation.
     Hon. Mark O. Hatfield,
     Washington, DC.
       Dear Senator Hatfield: I applaud your efforts to develop a 
     federal environmental audit privilege. The best mechanism for 
     environmental compliance is a properly constructed 
     environmental audit program--and anyone who is sincerely 
     concerned with environmental compliance should be interested 
     in eliminating disincentives to environmental audits.
       A federal environmental audit privilege will complete the 
     protection provided by Oregon's law on this subject, and will 
     signal the federal government's commitment to environmental 
     compliance.
       Best regards.
           Very truly yours,
                                                  Richard D. Bach.
                                  ____

                                            Cable Houston Benedict


                                           Haagensen & Ferris,

                                      Portland, OR, July 29, 1994.
     Senator Mark O. Hatfield,
     Washington, DC.
       Dear Senator Hatfield: Jim Whitty of Associated Oregon 
     Industries indicated that you were interested in receiving 
     information from Oregon on your proposed federal 
     environmental audit privilege bill. Our firm supports 
     introduction and passage of such a bill.
       Our law firm provides legal representation for numerous 
     businesses and individuals involving compliance with federal, 
     Oregon and Washington environmental statutes and rules. We 
     have been involved extensively with environmental enforcement 
     matters before the Environmental Protection Agency and Oregon 
     and Washington agencies. We also have assisted clients in 
     establishing and maintaining environmental compliance 
     programs. During the 1993 session of the Oregon Legislative 
     Assembly, we worked on Senate Bill 912, the Oregon 
     Environmental Crimes Act. As you know, that Act in ORS 
     468.963 creates an ``environmental audit privilege'' that 
     means that if the proper procedures are followed, the 
     information contained in an environmental audit cannot be 
     used to prove a violation of an environmental law in Oregon 
     civil, criminal or administrative proceedings.
       Although the Oregon law has been in effect for less than 
     one year, it has been significant. Certain of our clients 
     have been more receptive to establishing environmental 
     auditing programs for their operations. Other clients with 
     existing environmental audit programs have been more willing 
     to document the audit process through written materials and 
     have also been more willing to involve a larger number of 
     individuals in the auditing process.
       Thus, it appears Oregon's law protecting environmental 
     audits is having a positive effect. Oregon's audit 
     protection, however, does not provide a blank check to those 
     in Oregon regulated by environmental laws. The Oregon law has 
     an important safeguard in ORS 468.963(3)(d)--that the 
     privilege only applies if the party asserting the privilege 
     uses appropriate efforts to achieve compliance promptly and 
     with reasonable diligence as soon as the person is faced with 
     evidence of noncompliance with an environmental law.
       Federal legislation similar to Oregon's law would complete 
     the protection provided by Oregon law by extending the audit 
     privilege to federal enforcement activities. Again, if Oregon 
     law is followed the important counterbalance would be present 
     that the privilege would not apply unless the person 
     asserting the privilege used appropriate efforts to achieve 
     compliance promptly and with reasonable diligence as soon as 
     a violation of environmental law becomes apparent.
       I hope this information is of assistance in your work on a 
     federal environmental audit privilege bill. If I can provide 
     any additional information, please let me know.
           Very truly yours,
                                              Donald A. Haagensen.
                                  ____



                                            Simpson Paper Co.,

                                    West Linn, OR, August 4, 1994.
     Senator Mark O. Hatfield,
     Washington, DC.
       Dear Senator Hatfield: I am writing to you regarding the 
     federal environmental audit privilege bill that you are 
     preparing to introduce shortly. I have been with industry for 
     ten years, now and serve in the capacity of Environmental 
     Supervisor for Simpson Paper Company, in West Linn, Oregon. 
     Simpson Paper Company has implemented an internal audit 
     program. I served on the task force to detail the audit 
     program, and serve as a member of the audit team for our 
     sister mills outside of Oregon.
       The audit program is truly strengthening our environmental 
     programs. Our Code of Conduct is to be in full environmental 
     compliance. I believe, that any company, wants to find out 
     problems, and correct any deficiencies without the threat of 
     punishment for doing the right thing. The environmental audit 
     programs are a way that industry can achieve environmental 
     benefits for the community in a much more positive manner 
     than enforcement actions, or any negative mechanism. In fact, 
     my inspector for Oregon DEQ, told me that it is his 
     experience, that companies are harder with their own audit 
     programs, than the regulatory agency.
       I strongly support your efforts to introduce the bill for 
     the federal environmental audit privilege. The Oregon 
     privilege creates a cooperative work environment for industry 
     and the environmental regulatory community.
           Sincerely,
                                              Heather M. Bartlett,
                                         Environmental Supervisor.
                                  ____



                                        Georgia-Pacific Corp.,

                                       Toledo, OR, August 3, 1994.
       Dear Senator Hatfield: I am writing in support of your bill 
     to provide an environmental audit privilege which would be 
     both a part of EPA's programs and protect the audit privilege 
     in Oregon's statutes.
       There can never be enough federal and state inspectors to 
     keep track of every activity in the nation, so that 
     ultimately environmental progress comes down to trust and 
     self-compliance. Our corporate audits are valuable review of 
     our practices and training to ensure that we are operating 
     correctly. Beyond those, the audits if conducted freely with 
     ample opportunity for discussion back and forth among mill 
     and corporate environmental staffs and with corporate legal 
     staffs on points open to interpretation are a vehicle for 
     exploring issues and arriving at progressive corporate 
     policies. We need the audit privilege to be free to raise 
     issues that may need legal research to determine their 
     status, or may be environmentally sound changes even though 
     existing practices are not illegal. We would not want to be 
     trapped into declaring activities illegal just by including 
     them in an audit.
       The basic purpose of audits is to determine whether sources 
     or practices are or are not in compliance. If an audit finds 
     noncompliance, action can, and is, taken immediately to 
     correct the problem. It is literally impossible to be in 
     complete compliance 100% of the time with all the various and 
     changing environmental statutory and regulatory requirements. 
     The corporate policy of Georgia-Pacific is to comply with 
     environmental requirements. We have an internal audit 
     program. As part of that program, action is taken immediately 
     to correct deficiencies. The goal for EPA and other agencies 
     should be compliance, not the amount of money that can be 
     collected in penalties. Corporations should be encouraged to 
     conduct audits and to correct deficiencies. If audit reports 
     are not privileged and audits are subject to review by 
     regulatory agencies and environmental groups, large fines may 
     be assessed and, as a result, companies become very reluctant 
     to conduct audits. This would be a very serious mistake, 
     because problems can be corrected only once they are 
     known. The environment is improved when environmental 
     problems are discovered and corrected. Encouraging audits 
     is a way that the agencies can be proactive in furthering 
     environmental progress.
       Whey you were Governor of Oregon, and I was starting my 
     environmental career in the OSSA (now DEO), we as a state 
     accomplished much with ``conciliation and cooperation.'' Now 
     the environmental programs are based on adversarial 
     procedures, and there is a risk of discussing issues 
     informally with the agencies. Internal audits keep us as a 
     corporation making progress beyond the letter of the law and 
     before formal agency actions. It would be a shame to lose 
     this internal avenue of progress that flows from our audits.
           Sincerely,
                                                       Clint Ayer,
                                         Environmental Supervisor.
                                  ____



                               Stoel Rives Boley Jones & Grey,

                                     Portland, OR, August 1, 1994.
     Re Environmental Audit Privilege.

     Hon. Mark O. Hatfield,
     U.S. Senate, Washington, DC.
       Dear Senator Hatfield: Thank you for the opportunity to 
     speak with you on July 7 about Superfund reauthorization and 
     the development of a federal environmental audit privilege. 
     As we discussed at that meeting, our firm and many of our 
     clients strongly support the concept of a self-evaluation 
     privilege for environmental audits.
       The objections of the Environmental Protection Agency and 
     the United States Department of Justice to the environmental 
     audit privilege are very difficult to understand, especially 
     if the privilege is limited in the manner provided in the 
     Oregon law. We are hard pressed to think of any circumstances 
     under which the audit privilege would frustrate civil or 
     criminal investigations or enforcement. In essence, the 
     privilege would protect from discovery in litigation only 
     information that simply would not exist in the absence of the 
     privilege. All documents not prepared as part of a qualified 
     audit would be fully admissible as evidence.
       For years, our firm has assisted clients in conducting 
     environmental audits under the attorney-client communication 
     privilege and the attorney work product privilege. While the 
     use of these privileges is appropriate in many circumstances, 
     the level of necessary attorney involvement can encumber an 
     environmental audit program, thereby increasing its expense 
     and limiting its frequency and utility. In many 
     circumstances, an environmental audit privilege will free 
     clients to conduct these audits on their own without the 
     added expense of legal counsel being involved at every step. 
     Like our clients, we view such efficiencies as a positive 
     development.
       Thank you again for the opportunity to comment on this 
     legislation. We hope that you will help Oregon lead the 
     country in developing a program that will encourage rather 
     than frustrate industries' efforts to improve compliance with 
     environmental laws.
           Very truly yours,
                                                  J. Mark Morford.
                                  ____



                                  Willamette Industries, Inc.,

                                       Albany, OR, August 5, 1994.
     Senator Mark O. Hatfield,
     Washington, DC.
       Dear Senator Hatfield: Willamette Industries, Inc. has 
     learned that you are preparing to introduce a bill for a 
     Federal environmental audit privilege. Although we do not 
     have the details of your bill, Willamette would be in support 
     of a Federal environmental audit privilege similar to that 
     provided by Oregon law.
       The Oregon law is designed to be an incentive to owners and 
     operators of manufacturing facilities for investigating and 
     addressing noncompliance without the fear of retribution from 
     a regulatory agency. The results are beneficial to the 
     owners/operators, the public and to the environment. The law 
     fosters better relations, enhanced communications and 
     restored trust between the regulated community and the 
     regulators. Each of these factors can lend to the advancement 
     of proactive, motivated environmental compliance.
       Without Federal audit privilege comparable to the Oregon 
     law, environmental compliance is going to continue to be 
     burdened by the fear of Federal reprisal. Your bill could 
     have major, positive ramifications for not only Oregon 
     businesses but the entire nation.
       Again, we support your efforts in this regard and your 
     continued interest in maintaining a healthy business climate. 
     We would appreciate it if you or your staff would keep us 
     apprised of your progress with this bill. Please give us a 
     call if we can be of any assistance.
           Sincerely,

                                             Corey L. Unfried,

                                     Chief Environmental Engineer,
                                         Building Materials Group.
                                  ____



                                                   PacifiCorp,

                                     Portland, OR, August 5, 1994.
     Re environmental audit privilege.

     Hon. Mark O. Hatfield,
     U.S. Senate,
     Washington, DC.
       Dear Senator Hatfield: Thank you for the opportunity to 
     express our position on federal legislation for an 
     environmental audit (aka self-evaluative) privilege. We are 
     very much in support of a federal privilege.
       PacifiCorp (dba Pacific Power and Utah Power) has been 
     performing environmental audits of its various facilities for 
     seven years. PacifiCorp has never attempted to protect 
     internal audit documents through means such as the Attorney/
     Client Privilege, the Work Product Doctrine, or by limiting 
     distribution. PacifiCorp has always felt that, to obtain 
     effective resolution on environmental audit findings, 
     documents must be available to the workers who will 
     ultimately implement corrective action. Due to the wide 
     distribution of environmental audit documents, PacifiCorp has 
     always felt vulnerable to agency action based on PacifiCorp's 
     own investigations.
       In 1986, a year before PacifiCorp began environmental 
     auditing, the United States Environmental Protection Agency 
     (USEPA or EPA) published the Environmental Auditing Policy 
     Statement (the Policy). In the Policy, EPA stated that it 
     would not routinely request audit documents. It further 
     stated that when it did request the documents, it would be 
     because no alternative method was available to obtain the 
     information. And, entire documents would not be requested, 
     but only parts pertinent to its investigation. The Policy 
     gave some of industry a limited amount of comfort it sought 
     to be able to initiate internal environmental auditing 
     programs. In the years since the Policy was published, EPA 
     has demonstrated its integrity by adhering to the policy.
       Problems remain with the Policy, though. For one, it is 
     merely a policy, not law. EPA does not have to follow the 
     Policy if it doesn't want to. For another, it has no effect 
     on state or local agencies. Recently, state and local 
     agencies have established enforcement divisions. Industry 
     desires the same treatment from the states it has been (and 
     hopes to continue) receiving from EPA.
       A clear benefit of a federal privilege written into law, as 
     opposed to the Policy, would be the establishment of 
     enforceable guidelines for the agencies. Since 1986, the 
     USEPA has been very conscientious about adhering to the 
     Policy. But, it doesn't have to. That is what continues to 
     worry many in industry. With a federal privilege as law, 
     EPA would have certain steps to follow in certain 
     circumstances should it desire access to the written 
     products of industry's internal environmental audits. In 
     addition to allowing industry to know what to expect from 
     the agencies, this could actually streamline processes for 
     the agencies. Instead of arguing over the vagaries of law, 
     they would be able to follow the clear guidelines of the 
     privilege.
       One of industry's biggest concerns when performing 
     environmental audits is having its findings used against it, 
     whether in an agency's administrative action, to initiate 
     criminal charges, or to promote a third party civil suit. 
     Industry spends considerable amounts of time and money 
     establishing internal environmental auditing programs to 
     evaluate its level of compliance with environmental laws and 
     regulations. It then spends even more to develop methods to 
     correct those problems. Industry feels that the products 
     developed through its labors and at its expense belong to the 
     company doing the work and paying the bills. When an agency 
     asks industry for its environmental audit documents, the 
     agency is asking industry to do the agency's work at 
     industry's expense. Then, if the public agency obtains 
     possession of the documents, all of the information in the 
     documents becomes public information. These are NOT 
     incentives for industry to investigate its level of 
     environmental compliance and document its findings so it can 
     take corrective action.
       Protecting audit documents from disclosure through methods 
     such as a self-evaluative privilege or the Policy does not 
     restrict an agency's ability to enforce environmental 
     regulations in any way. In contrast, it helps the agencies 
     establish higher levels of environmental compliance. Evidence 
     of underlying violations is not protected by self-evaluative 
     privileges. All information is still available to the 
     agencies; they just have to do their own investigations. This 
     is the same with or without the privilege. The advantage with 
     the privilege is a cleaner environment and higher levels of 
     compliance with environmental regulations. This is brought 
     about by the auditing that will be done if the privilege is 
     available, but wont be done without it.
       In Oregon, we are lucky. Our legislators, had the foresight 
     to establish a self-evaluative privilege. Their priority was 
     a clean environment, not punishment. Years ago, when the 
     first environmental laws were being enacted and the first 
     environmental regulations promulgated, industry did whatever 
     it could to avoid compliance. At that time, agencies needed a 
     big hammer to beat industry into compliance. Currently 
     though, industry operates with a different mind set. Industry 
     has become much more responsible. It is time for industry and 
     the environmental agencies to move away from their 
     adversarial positions and to begin cooperating. The self-
     evaluative privilege aids this cooperation by enabling 
     industry to take the lead searching for and cleaning up its 
     own environmental problems.
       Individual states have taken the initiative to propose, and 
     in some cases pass, legislation aimed more at improving the 
     environment than toward punishing polluters. The individual 
     states' laws differ slightly, though. When a company, such as 
     Pacific Corp, operates in more than one state, it must play 
     by different rules as it moves from state to state. Changing 
     from the Policy to a federal self-evaluative privilege would 
     aid in consistency. As with many other environmental laws and 
     regulations, many states would incorporate the federal rules 
     by reference. Even states that have already passed their own 
     privilege laws may change to adopt a well written federal 
     law. With consistency in environmental laws state to state, 
     industry has a much easier time learning and understanding, 
     and therefore, complying with them. This is not to suggest 
     that environmental laws should be lenient or lax to help 
     industry comply, just that they be consistent. After all, 
     isn't the goal increased compliance to enhance the 
     environment?
       Oregon, in her tradition of an environmental leader, was 
     the first state to pass an environmental self-evaluative 
     privilege law. Being the first, Oregon had no other laws to 
     review and build on PacifiCorp has found, through its review 
     of other states' proposed laws, that some of the other states 
     have taken Oregon's law as a starting place and improved on 
     it. PacifiCorp respectfully suggests review of Alabama's 
     proposed bill during your research for preparation of a 
     federal bill.
       Thank you, Senator, for this opportunity to express our 
     support for your efforts. We encourage your success in this 
     matter.
           Sincerely,

                                                 David Wilson,

                                       Sr. Environmental Engineer,
                                                       PacifiCorp.
                                  

                          ____________________