[Congressional Record Volume 141, Number 189 (Wednesday, November 29, 1995)]
[Senate]
[Pages S17776-S17782]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. McCAIN:
  S. 1433. A bill to direct the Secretary of Energy to establish a 
system for defining the scope of energy research and development 
projects, and for other purposes; to the Committee on Energy and 
Natural Resources.


    defining the scope of energy research and development projects 
                              legislation

 Mr. McCAIN. Mr. President, at a time in which we are trying to 
reduce the deficit and improve the efficiency of government, we should 
not be funding research and development projects that are ill defined 
and poorly managed because of a lack of direction and purpose. We 
should not be providing Federal dollars to any program in which it is 
not clear how the American public will benefit from its investment. It 
only stands to reason that if the private sector will not fund efforts 
in which there is not some return on its investment, the Federal 
Government should not either.
  Furthermore, we should not be funding efforts that the private sector 
should be funding because of its huge payoff to the private sector and 
minimal payoff to the American public. If there is shared benefits to 
be realized by both, then the effort should be cost shared between the 
two.
  The Department of Energy spends approximately $7 billion a year on 
research and development activities. They cover a wide range of science 
and engineering issues in the energy field. Any savings due to an 
improvement in the efficiency and the effectiveness of the management 
system will amount to several millions of dollars.
  Mr. President, I am introducing a bill that will begin to address 
this issue. The bill will require the Secretary of Energy to establish 
a project definition system for research and development projects in 
which projects costs are expected to exceed $1 million.
  It is expected that by requiring this project definition system prior 
to funding any project, costly revisions in project plans and 
directions may be avoided. The project definition document, the product 
of the project definition system, will provide the foundation by which 
more detailed project plans can be developed. It is expected that this 
system will also further ensure that the Department is not funding 
projects that are not addressing a known problem.
  The bill identifies a number of issues or questions to be resolved 
prior to the funding of a project. Included are such things as project 
cost, duration, future users or beneficiaries, cost sharing, and 
expected outcome.
  However, also included in this list is the criteria to be used to 
determine the end of the project or the end of Government funding. For 
many years, Government-sponsored projects have gone on for years 
without any clear end in sight. They have consumed years of funding 
with little or no benefit for continuation. By having this criteria 
established at the beginning of the project, this practice will be 
stopped. With this stoppage of Government support, any cost-sharing 
partners may continue with the project if they decide to do so.
  Mr. President, I feel this bill takes a step in the right direction 
of ensuring that our public resources are invested wisely and 
responsibly. I feel that if the Department can invest a little more 
time, more money, at the beginning of these expensive research and 
development projects, it can avoid some of the costly type of mistakes 
that it has made in the past--mistakes due to ill-defined projects and 
lack of proper planning.
  I look forward to further discussions with my colleagues on how to 
further improve this bill. I hope my colleagues will join me in 
supporting this bill as we debate the future of the Department of 
Energy and work to eliminate projects that can and should be undertaken 
by the private sector, we should at the very least seek ways to ensure 
a direction and efficiency in the projects we do undertake.
      By Mr. THOMAS (for himself, Mr. Dole, Mr. Domenici, Mr. Simpson, 
        Mrs. Kassebaum, Mr. Faircloth, Mr. Thompson, and Mr. Cochran):

  S. 1434. A bill to amend the Congressional Budget Act of 1974 to 
provide for a 2-year--biennial--budgeting cycle, and for other 
purposes; to the Committee on the Budget and the Committee on 
Governmental Affairs, jointly, pursuant to the order of August 4, 1977, 
with instructions that if one committee reports, the other committee 
has 30 days to report or be discharged.


                   THE BIENNIAL BUDGETING ACT OF 1995

  Mr. THOMAS. Mr. President, I rise today to introduce a bill that 
creates a biennial budgeting cycle. It seems to me it is particularly 
appropriate to do that now. We have spent almost this entire year 
dealing with the budget. Surely it has been an unusual budget year in 
that we are attempting to make some changes, fundamental changes, in 
direction. But it is not otherwise unusual. As a matter of fact, since 
1977, there have been 55 continuing resolutions, which would indicate 
we need to change the budgeting process. I am joined in this effort by 
a number of Senators originally and hope to have more: Senator Dole, 
Senator Domenici, Senator Simpson, Senator Kassebaum, Senator 
Faircloth, Senator Thompson and Senator Cochran.
  There are a lot of things we ought to be doing. We ought to be 
dealing with health care. We have not finished that problem. We ought 
to be dealing with regulatory reform. Most everyone agrees with that. 
Telecommunications, where we can deregulate and move forward with the 
things that will create jobs and move us forward. Personally, I believe 
we ought to be doing something with rangeland reform. Some of us live 
in States where 50 to 80 percent of the surface belongs to the Federal 
Government and is managed by the Federal Government. We need to change 
some of those things. Foreign policy--we need to be involved more in 
foreign policy. I think we find ourselves drifting into situations 
where we need to make policy in certain places and the administration 
says, gosh, we do not want to do that until we get an agreement, and 
then, after we have an agreement, it is too late to talk about it. So, 
essentially, the Congress is outside of foreign policy. That is wrong. 
We ought to be talking about endangered species, and a number of things 
that need to be done. 

[[Page S 17777]]

  Instead, Mr. President, as you know, we spend almost all our time 
deciding on how we are going to fund the Government. Most States--the 
Presiding Officer, I think, in his State of Missouri, served as 
Governor--have biennial budgets. There are a couple of advantages to 
that, certainly. One of them is that it gives a little longer time for 
agencies to plan. Rather than every year, they have more tenure in 
their budgeting. They can plan longer. More important, I think, it 
allows the Congress, then, to have some time to do the other things, 
one of which is oversight of the budget.
  I suspect that the budget debate will not be over in this session of 
Congress until next year. I suspect in less than 2 months we will be 
moving into another budget debate which consumes all of our time. I 
already mentioned that since 1977 we have had 55 continuing 
resolutions. We have had too many repetitive votes. We are back on the 
same thing over and over and over again without any new issue.

  So there has not been, and continues not to be, enough time for 
vigorous oversight. I suspect one of the principal functions of the 
legislative body ought to be oversight of the budgets that they have 
approved to ensure that they are, indeed, being spent as they were 
designed to be spent and to discover how they can be spent more 
efficiently and more effectively. That is one of the things we have had 
very little time to do.
  The provisions of this bill are rather simple. By the way, this is 
not a new idea. This has been introduced a number of times, been 
considered and supported by many Members of this body. It creates a 2-
year authorization of appropriation and budget resolutions so that you 
set it out in a block and say here we are. It is not much more 
difficult to do it for 2 years than 1. You simply have a block of 2 
years in which to do a budget. It is not difficult at all. All 
budgetary activities would take place during the first session of 
Congress. So in the second session you would have a chance to go back 
and provide some oversight to what is being done with the money that 
has been appropriated. Oversight in nonbudgetary matters would be taken 
up in the second session of Congress. There would be an opportunity to 
do the kinds of policy things that the Congress is designed to do in 
addition to spending all of our time funding the Government. Benefits, 
of course, would promote timely action on the budget, and would 
eliminate some of the redundancy. We need to do that. It would provide 
more time for effective oversight in the off years, and it would help 
so that we can reduce the size of Government.
  It would also reduce the number of times where there is potential for 
the kinds of congressional-Presidential conflicts that arise so often 
as in the process now that arises. If would allow the budget to be 
adopted in the first year of the President's term, and in the first 
year of the sessions of Congress so that new Congresses can implement 
their budget, and then have a year for oversight. It would encourage 
longer-term planning in the agencies.
  I think that is one of the keys to reducing the cost of Government. 
There have been very many programs, of course, that need to be 
analyzed, and that have to have applied to them priorities. Things need 
to be done much better--things that could be transferred to local 
governments, and closer to the people. Those things all are often a 
result of oversight.
  There is a good deal of support for this proposition, as there has 
been in the past--Citizens Against Government Waste, the Hudson 
Institute, Concord Coalition, Cato Institute, Committee for Responsible 
Federal Budgeting--a 20-year history of legislative bipartisan support 
in this Congress supported by Presidents Bush and Reagan over the 
years.
  Mr. President, this is obviously not a cure-all. Budgets are 
difficult. The allocation of money to activities is not easy, and it is 
terribly important. But I submit to you that it can be done as well in 
2-year blocks, and the results will be much better. The results will be 
much better for the operations of Congress. The results will be much 
better for the operations of Government.
                                 ______

      By Mr. McCONNELL (for himself and Mr. Warner):
  S. 1435. A bill to grant immunity from personal civil liability, 
under certain circumstances, to volunteers working on behalf of 
nonprofit organizations and governmental entities; to the Committee on 
the Judiciary.


                      THE VOLUNTEER PROTECTION ACT

  Mr. McCONNELL. Mr. President, volunteer service has become a high-
risk venture. Our ``sue happy'' legal culture has ensnared those 
selfless individuals who help worthy organizations and institutions 
through volunteer service. And, these lawsuits are proof that no good 
deed goes unpunished.
  In order to relieve volunteers from these million dollar liability 
judgments, I am pleased to introduce the Volunteer Protection Act.
  The litigation craze is hurting the spirit of voluntarism that is an 
integral part of American society. From school chaperones to Girl Scout 
and Boy Scout troop leaders to good samaritan doctors and nursing home 
aides, volunteers perform valuable services. And, these volunteers are 
being dragged into court and needlessly and unfairly sued. The end 
result? Too many people pointing fingers and too few offering a helping 
hand.
  So, this bill creates immunity from lawsuits for those volunteers who 
act within the scope of their responsibilities, who are properly 
licensed or certified where necessary, and who do not cause harm 
willfully and wantonly.
  In addition to creating a Federal standard for volunteer protection, 
the bill allows the States to add further refinements to the Federal 
standard. This will give the States a degree of flexibility and it 
strikes a balance between the federalism interest and the need to 
protect volunteers from these lawsuits. If a State enacts one or more 
of these additional criteria, the State law will be consistent with the 
Federal standard:
  A requirement that the organization or entity adhere to risk 
management procedures, including the training of volunteers.
  A requirement that the organization or entity be accountable for the 
actions of its volunteers in the same way that an employer is liable 
for the acts of its employees.
  An exemption from the liability protection in the event the volunteer 
is using a motor vehicle or similar instrument.
  An exemption from the liability protection if the lawsuit is brought 
by a State or local official in accordance with State or local law.
  A requirement that the liability protection applies only if the 
nonprofit organization or government entity provides a financially 
secure source of recovery, such as an insurance policy, for those who 
suffer harm.

  I ask unanimous consent that a copy of the bill be printed in the 
Record and Legal Backgrounder entitled, ``Unfair Lawsuits Threaten 
Volunteers'' as well as the American Tort Reform Association's ``A Few 
Facts About Volunteer Liability'' also be printed in the Record.
  Mr. President, this bill is widely supported by those organizations 
who rely on volunteers to provide important services to our 
communities. Some 150 organizations have endorsed this bill and I ask 
that a list of the Coalition for Volunteer Protection be printed in the 
Record.
  I look forward to the Senate's consideration of this bill and to 
prompt passage. We cannot afford not to enact this legislation. Our 
communities are depending upon us.
  There being no objection, the materials were ordered to be printed in 
the Record, as follows:

                                S. 1435

       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 ``Volunteer Protection Act of 
     1995''.

     SEC. 2. FINDINGS AND PURPOSE.

       (a) Findings.--The Congress finds and declares that--
       (1) the willingness of volunteers to offer their services 
     is deterred by potential for liability actions against them 
     and the organizations they serve;
       (2) as a result, many nonprofit public and private 
     organizations and governmental entities, including voluntary 
     associations, social service agencies, educational 
     institutions, and other civic programs, have been adversely 
     affected by the withdrawal of volunteers from boards of 
     directors and service in other capacities;
       (3) the contribution of these programs to their communities 
     is thereby diminished, resulting in fewer and higher cost 
     programs 

[[Page S 17778]]
     than would be obtainable if volunteers were participating; and
       (4) because Federal funds are expended on useful and cost-
     effective social service programs, many of which are national 
     in scope, depend heavily on volunteer participation, and 
     represent some of the most successful public-private 
     partnerships, protection of volunteerism through 
     clarification and limitation of the personal liability risks 
     assumed by the volunteer in connection with such 
     participation is an appropriate subject for Federal 
     legislation.
       (b) Purpose.--The purpose of this Act is to promote the 
     interests of social service program beneficiaries and 
     taxpayers and to sustain the availability of programs, 
     nonprofit organizations, and governmental entities that 
     depend on volunteer contributions by reforming the laws to 
     provide protection from personal financial liability to 
     volunteers serving nonprofit organizations and governmental 
     entities for actions undertaken in good faith on behalf of 
     such organizations.

     SEC. 3. PREEMPTION.

       This Act preempts the laws of any State to the extent that 
     such laws are inconsistent with this Act, except that this 
     Act shall not preempt any State law that provides additional 
     incentives or protections to volunteers, or category of 
     volunteers.

     SEC. 4. LIMITATION ON LIABILITY FOR VOLUNTEERS.

       (a) Liability Protection for Volunteers.--Except as 
     provided in subsections (b) and (d), no volunteer of a 
     nonprofit organization or governmental entity shall be liable 
     for harm caused by an act or omission of the volunteer on 
     behalf of the organization or entity if--
       (1) the volunteer was acting within the scope of his or her 
     responsibilities in the nonprofit organization or 
     governmental entity at the time of the act or omission;
       (2) if appropriate or required, the volunteer was properly 
     licensed, certified, or authorized by the appropriate 
     authorities for the activities or practice in the State 
     undertaken within the scope of his or her responsibilities in 
     the nonprofit organization or governmental entity; and
       (3) the harm was not caused by willful and wanton 
     misconduct by the volunteer.
       (b) Concerning Responsibility of Volunteers With Respect to 
     Organizations.--Nothing in this section shall be construed to 
     affect any civil action brought by any nonprofit organization 
     or any governmental entity against any volunteer of such 
     organization or entity.
       (c) No Effect on Liability of Organization.--Nothing in 
     this section shall be construed to affect the liability of 
     any nonprofit organization or governmental entity with 
     respect to harm caused to any person.
       (d) Exceptions to Volunteer Liability Protection.--If the 
     laws of a State limit volunteer liability subject to one or 
     more of the following conditions, such conditions shall not 
     be construed as inconsistent with this Act:
       (1) A State law that requires the organization or entity to 
     adhere to risk management procedures, including mandatory 
     training of volunteers.
       (2) A State law that makes the organization or entity 
     liable for the acts or omissions of its volunteers to the 
     same extent as an employer is liable for the acts or 
     omissions of its employees.
       (3) A State law that the limitation of liability does not 
     apply if the volunteer was operating a motor vehicle, vessel, 
     aircraft, or other vehicle for which the State requires the 
     operator or vehicle owner to possess an operator's license or 
     to maintain insurance.
       (4) A State law that the limitation of liability does not 
     apply if the civil action was brought by an officer of a 
     State or local government pursuant to State or local law.
       (5) A State law that the limitation of liability shall 
     apply only if the nonprofit organization or governmental 
     entity provides a financially secure source of recovery for 
     individuals who suffer harm as a result of actions taken by a 
     volunteer on behalf of the organization or entity. A 
     financially secure source of recovery may be an insurance 
     policy within specified limits, comparable coverage from a 
     risk pooling mechanism, equivalent assets, or alternative 
     arrangements that satisfy the State that the entity will be 
     able to pay for losses up to a specified amount. Separate 
     standards for different types of liability exposure may be 
     specified.

     SEC. 5. DEFINITIONS.

       For purposes of this Act--
       (1) the term ``economic losses'' means objectively 
     verifiable monetary losses, including past and future medical 
     expenses, loss of past and future earnings, cost of obtaining 
     replacement services in the home (including child care, 
     transportation, food preparation, and household care), cost 
     of making reasonable accommodations to a personal residence, 
     loss of employment, and loss of business or employment 
     opportunities;
       (2) the term ``harm'' includes physical, nonphysical, 
     economic, and noneconomic losses;
       (3) the term ``noneconomic losses'' means losses for 
     physical and emotional pain, suffering, inconvenience, 
     physical impairment, mental anguish, disfigurement, loss of 
     enjoyment of life, loss of society and companionship, loss of 
     consortium (other than loss of domestic service), hedonic 
     damages, injury to reputation and all other nonpecuniary 
     losses of any kind or nature;
       (4) the term ``nonprofit organization'' means any 
     organization described in section 501(c) of the Internal 
     Revenue Code of 1986 and exempt from tax under section 501(a) 
     of such Code;
       (5) the term ``State'' means each of the several States, 
     the District of Columbia, the Commonwealth of Puerto Rico, 
     the Virgin Islands, Guam, American Samoa, the Northern 
     Mariana Islands, any other territory or possession of the 
     United States, or any political subdivision of any such 
     State, territory, or possession; and
       (6) the term ``volunteer'' means an individual performing 
     services for a nonprofit organization or a governmental 
     entity who does not receive--
       (A) compensation (other than reimbursement or allowance for 
     expenses actually incurred); or
       (B) any other thing of value in lieu of compensation,

     in excess of $300 per year, and such term includes a 
     volunteer serving as a director, officer, trustee, or direct 
     service volunteer.

     SEC. 6. EFFECTIVE DATE.

       This Act applies to any claim for harm caused by an act or 
     omission of a volunteer filed on or after the date of 
     enactment of this Act, without regard to whether the harm 
     that is the subject of the claim or the conduct that caused 
     the harm occurred before such date of enactment.
                                                                    ____



                             American Tort Reform Association,

                                                   Washington, DC.

                          Volunteer Liability

       In October 1983, Craig Fredborg celebrated his birthday by 
     climbing Box Springs Mountain, overlooking Riverside, 
     California. To his companions' horror, Fredborg slipped on a 
     boulder and plummeted some 90 feet, sustaining severe spinal 
     injuries.
       Alerted that Fredborg lay helpless on the slope, Walter 
     Walker, now 54, and his son Kevin, 31, and teammates from the 
     volunteer Riverside Mountain Rescue Unit scrambled to aid a 
     physician and a paramedic in mounting a ticklish nighttime 
     helicopter evacuation. Over the last 30 years, the unit's 
     volunteers have saved hundreds of lives. But for their 
     troubles, the Walkers and the others involved in the 
     emergency mission were sued two years later by the victim, 
     who asked $12 million in damages, claiming that `reckless and 
     negligent' rescue techniques had caused him to become a 
     quadriplegic.
       The lawsuit eventually was dropped. But not before the 
     Walkers lost a lot of hours from their family printing 
     business giving depositions and meeting with defense 
     attorneys provided them by the county sheriff's department. 
     Perhaps the most significant consequence of the suit, says 
     Walker, is that meticulous documentation and planning 
     procedures have been instituted in its wake to forestall 
     future liability claims. `Probably we were a little weak in 
     that,' he concedes. Nevertheless, he adds, `It definitely has 
     slowed us down in getting the team into the field . . . 
     Concern about liability exposure has complicated how we look 
     at every mission.' ''--David O. Weber, ``A Thousand Points of 
     Fright?'', Insurance Review, February 1991.
       A man who was high on LSD was rescued by a student, after 
     he had jumped from a 30 foot dockside bar into a seven foot 
     pool of water. The man suffered a broken neck and was left 
     paralyzed for life. However, he subsequently sued both the 
     school and the student. The judge eventually threw the case 
     out, but unfortunately, this is just another prime example of 
     a waste of tax payers money.--Mississippi Press, May 2, 1993.
       ``Amateur referees at softball diamonds, high school 
     stadiums and college field houses are finding that their 
     decisions can trigger major-league lawsuits.'' An Iowa 
     souvenir company faced with a suddenly devalued inventory 
     challenged the last-second foul call of a part-time Big Ten 
     basketball official with a $175,000 negligence suit. The 
     official eventually won his court battle, but only after a 
     costly two-year fight that went all the way to the Iowa 
     Supreme Court.
       ``Some of our people got to the point where they were just 
     afraid to work because of the threat of lawsuits,'' says 
     Dottie Lewis of the Southwest Officials Association in 
     Dallas. The Association provides officials for scholastic 
     games.
       A New Jersey umpire was sued by a catcher who was hit in 
     the eye by a softball while playing without a mask; he 
     complained that the umpire should have lent him his. The 
     catcher walked away with a $24,000 settlement.--The Wall 
     Street Journal, Friday, August 11, 1989.
       58% of the principals responding to a survey sponsored by 
     the National Association of Secondary School Principals said 
     that they had noticed a difference in the kinds of school 
     programs being offered in schools because of liability 
     concerns, and the use of non-faculty volunteers was affected. 
     Typically, parent volunteers assist schools with tutoring, 
     science programs, class trips and social activities.--1989 
     Survey Members of the National Association of Secondary 
     School Principals.
                                                                    ____


              National Coalition for Volunteer Protection

       Academy of Medicine of Columbus and Franklin County, Air 
     Force Association, Alabama Forestry Association, Alabama 
     Oilmens Association, Alabama Textile Manufacturers 
     Association, Alliance for Fire and Emergency Management, 
     American Association of Blood Banks, American Association 

[[Page S 17779]]
     of Equine Practitioners, American Association of Museums, American 
     Association of Nurserymen, American Association of 
     Occupational Health Nurses, American Chamber of Commerce 
     Executives, American College of Emergency Physicians--
     National Office.
       American College of Healthcare Executives, American 
     Diabetes Association Kentucky Affiliate, American Hardware 
     Manufacturers Association, American Horse Council 
     Incorporated, American Horticultural Therapy Association, 
     American Industrial Hygiene Association, American Institute 
     of Architects North Carolina Chapter, American Physical 
     Therapy Association California Chapter, American Physical 
     Therapy Association Louisiana Chapter, American Production 
     and Inventory Control Society, American Red Cross, American 
     Society of Anesthesiologists, American Society of Association 
     Executives, American Society of Mechanical Engineers 
     Washington Office, American Society of Safety Engineers.
       American Tort Reform Association, Anchorage Convention and 
     Visitors Bureau, Arizona Academy of Family Physicians, 
     Arizona Cable Television Association, Arizona Contractors 
     Association, Arizona Motor Transport Association, Arkansas 
     Hospital Association, Arkansas Hospitality Association, 
     Arkansas Pharmacists Association, Arthritis Foundation 
     National Office, Associated Builders and Contractors of 
     Wisconsin Incorporated.
       Associated California Loggers, Associated Industries of 
     Massachusetts, Association Management Services, Association 
     of Graphic Communications, Baton Rouge Apartment Association, 
     Beacon Consulting Group, Building Industry Association of 
     Tulare/Kings Counties Incorporated, California Association of 
     Employers, California Association of Marriage and Family 
     Therapists, California Chamber of Commerce, California Dental 
     Association, California Independent Petroleum Association, 
     California Society of Enrolled Agents, Catholic Health 
     Association, Chicagoland Chamber of Commerce.
       Childrens Alliance, Colorado Society of Association 
     Executives, Community and Economic Development Association of 
     Cook County Incorporated, Community Associations Institute, 
     Connecticut Association of Not for Profit Providers for the 
     Aging, Council of Community Blood Centers, Eastern Building 
     Material Dealers Association, Fazio International Ltd, 
     Financial Managers Society Incorporated, Florida Nurserymen 
     and Growers Association Incorporated, Florida Optometric 
     Association, General Federation of Womens Clubs, Greater 
     Washington Society of Association Executives, Home Builders 
     Association Holland Area, Home Builders Association of 
     Kentucky.
       Howe and Hutton Limited, Illinois Lumber and Material 
     Dealers Association Incorporated, Independent Insurance 
     Agents of Arkansas, Independent Insurance Agents of Virginia, 
     Independent Sector, International Association for Financial 
     Planning, Iowa and Nebraska Equipment Dealers Association, 
     Iowa Bankers Association, Iowa Society of Certified Public 
     Accountants, Kansas City Area Hospital Association, Kentucky 
     Automobile Dealers Association Incorporated, Kentucky Derby 
     Festival Incorporated, Kentucky Grocers Association, Kentucky 
     Medical Association, Literacy Volunteers of America.
       Long Island Convention and Visitors Bureau, MACU 
     Association Group, Maine Association of Broadcasters, 
     Maryland State Dental Association, Massachusetts Association 
     of Rehabiitation Facilities, Mechanical Contractors 
     Association of America Incorporated St. Louis Chapter, 
     Metropolitan Detroit Plumbing and Mechanical Contractors 
     Association, Michigan Chamber of Commerce, Michigan Dental 
     Association, Michigan Pork Producers Association, Midwest 
     Equipment Dealers Association Incorporated, Minnesota 
     Automobile Dealers Association, Minnesota Electrical 
     Association, Mississippi Malt Beverage Association.
       Mississippi Optometric Association, Missouri Association of 
     Homes for the Aging, Missouri Automobile Dealers Association, 
     Modular Building Institute, National Association for Campus 
     Activities, National Association of Hosiery Manufacturers, 
     National Electrical Contractors Association St. Louis 
     Chapter, National Electronic Distributors Association, 
     National Federation of Nonprofits, National Glass 
     Association, National Parent Teachers Association, National 
     Small Business United, National Society of Professional 
     Engineers, National Student Nurses Association, Nevada 
     Association of Realtors.
       Nevada Society of Certified Public Accountants, North 
     American Equipment Dealers Association, Ohio Lumberman's 
     Association, Ohio Osteopathic Association, Ohio Society of 
     Association Executives, Ohio Society of Certified Public 
     Accountants, Oklahoma Public Employees Association, 
     Professional Meetings and Association Services, Public Risk 
     Management Association, Recreation and Welfare Association, 
     Relationship Management Incorporated, Religious Conference 
     Management Association, Smith Bucklin and Associates 
     Incorporated Washington Office, Soroptimist International of 
     the Americas.
       South Dakota Dental Association and Foundation, Texas 
     Association of Nurserymen Incorporated, Texas Land Title 
     Association, Texas Oil Marketers Association, Towing and 
     Recovery Association of America, United States Hang Gliding 
     Association, United States Pony Clubs, United Way of America, 
     Utah Mechanical Contractors Association, Virginia Society of 
     Association Executives, Water Environment Federation, Western 
     Retail Implement and Hardware Association, Wisconsin Home 
     Organization, Wisconsin League of Financial Institutions Ltd, 
     Wisconsin Ready Mixed Concrete Association, Wisconsin 
     Restaurant Association, Wisconsin Wholesale Beer Distributors 
     Association, YMCA of the USA.
       150 Members as of November 27, 1995.
                                                                    ____



                                  Washington Legal Foundation,

                                Washington, DC, December 16, 1994.

                  Unfair Lawsuits Threaten Volunteers

                     (By William J. Cople III) \1\

       Volunteer service is under assault from an unlikely 
     quarter--the civil justice system. Like so many others, 
     volunteers and their service organizations have been swept 
     into the courts to face potential liability in civil suits. 
     Under the rule of law, our actions are judged by common 
     standards of conduct. This provides the basis for the courts 
     to recognize rights and afford remedies to those who claim to 
     be aggrieved. But civil justice should not be used recklessly 
     to inhibit beneficial conduct that may involve some amount of 
     risk. In order for volunteer service to survive and prosper, 
     the civil justice system must find an equilibrium under which 
     it recognizes and protects personal and property rights 
     without stifling the volunteer spirit so necessary to a vital 
     and self-reliant community.
     \1\ William J. Cople III is a partner with the Washington, 
     D.C. law firm of Spriggs & Hollingsworth and serves pro bono 
     as the General Counsel of the National Capital Area Council 
     of the Boy Scouts of America.
---------------------------------------------------------------------------
       Efforts to achieve this balance have been hindered by the 
     civil justice system itself. Both federal and state courts 
     seem to be trapped in a disturbing pattern of recognizing 
     novel rights and enlarging the scope of existing rights in an 
     effort to redress a multitude of real and perceived wrongs 
     and injuries. The courts have regrettably found rights, and 
     corresponding remedies, to exist in cases involving 
     grievances that are trivial or mundane and in cases where 
     acts or omissions were not previously understood to be a 
     legal wrong. In other cases, judges and juries have found 
     serious injuries and other matters of grave concern to 
     deserve recompense, even though the legal duty was uncertain 
     or the causal connection to the harm was attenuated.
       As a result, the value of rights that historically have 
     been recognized in the courts as a proper subject of redress 
     has been debased by according them respect no greater than 
     the most tenuous rights now being recognized. Moreover, the 
     expansion of potential liability may diminish desirable and 
     beneficial conduct, such as the willingness to serve as a 
     volunteer. In the past, the courts seem to have understood 
     that some circumstances, even ones of tragic proportion, are 
     simply caused by accident or misfortune, and not necessarily 
     by culpable conduct on the part of any other person. Yet, 
     this now has become an unacceptable conclusion. Every 
     conceivable circumstance in which we deal and interact with 
     each other seems to create a victim. This has spawned the 
     civil litigation clogging the courts, as every victim of 
     circumstances seeks compensation by shifting the blame for 
     those circumstances to someone else.
       An unfortunate effect of this civil litigation is to 
     heighten the risks of volunteer service. In thousands of 
     service organizations, volunteers give freely of their time 
     and effort to support activities that they believe to be 
     worthwhile for a host of personal reasons. This is done 
     without expectation of compensation or other remuneration of 
     any kind. Nonetheless, many volunteer organizations have been 
     forced by the growing threat of civil litigation to purchase 
     and maintain liability insurance or other forms of legal 
     indemnity covering volunteers for their services.
       Even with insurance coverage, the increasing risk of 
     litigation no doubt has a chilling effect on the willingness 
     and enthusiasm of volunteers to donate their time and effort. 
     Many volunteers may think twice before becoming involved, 
     while others may continue to participate, but curtail their 
     services to those activities that seem relatively risk-free. 
     Still others may cease to be a volunteer, out of an abundance 
     of caution and justifiable aversion to being caught up in 
     civil litigation. Quantifying the effects of increased risk 
     of civil liability on volunteer service will have to await 
     empirical evidence. It is fair to say, however, that 
     volunteers themselves have become victims of the civil 
     justice system. The increasing propensity to enlarge the 
     universe of rights and award compensation, often in stunning 
     amounts, may be to the detriment of volunteer service.
       This danger was illustrated recently in a personal injury 
     lawsuit brought against volunteers serving a local council of 
     the Boy Scouts of America. In a case brought in Oregon state 
     court, Powell v. Boy Scouts of America, et al., a youth 
     seriously injured in an activity sponsored by Scouting sued 
     the Boy Scouts and its adult volunteers for negligence.
       The Boy Scouts of America is a national volunteer service 
     organization, chartered by the U.S. Congress in 1916, 
     pursuant to 36 U.S.C. Sec. Sec. 21-29. Acting primarily 
     through its volunteers, the Boy Scouts is dedicated to the 
     training of youth in accordance with long-established 
     Scouting ideals and principles. Id. Sec. 23. The Boy Scouts 
     operates 

[[Page S 17780]]
     through several hundred local Scout councils. Community organizations 
     within each Council, including churches, schools, and civic 
     groups, among others, conduct Scouting programs and 
     activities. The availability of these programs and activities 
     depends upon individual volunteers willing to devote 
     considerable time and effort in providing adult supervision 
     for participating Scouts. These volunteers provide their time 
     and resources to support the Council and the local 
     organizations. They not only develop and plan the Scouting 
     activities, but also raise the funds in the community 
     necessary to support them. Without these volunteers, the Boy 
     Scouts would be deprived of its principal resource for 
     carrying out its national charter as a youth service 
     organization.
       In the Powell case, several adults in Portland, Oregon 
     volunteered to supervise an outing of the Sea Explorers, a 
     Scouting unit in the Boy Scouts' Cascade Pacific Council. In 
     a tragic accident, one of the young men participating in the 
     Sea Explorer outing suffered a paralyzing injury in a rough 
     game of touch football. The injured youth, who was 16 years 
     of age at the time of the accident, broke his neck during the 
     football game and is now quadriplegic. At least one of the 
     adult volunteers apparently knew that the boys were throwing 
     a football around, but neither observed the game in which the 
     boy was injured.
       Based on this incident, the injured youth filed a personal 
     injury lawsuit against the Boy Scouts and the Columbia 
     Pacific Council (predecessor to Cascade Pacific Council) in 
     Multnomah County Circuit Court, Oregon. The suit alleged that 
     the youth's injury was foreseeable and preventable, and that 
     the Boy Scouts and its volunteers negligently failed to 
     supervise him adequately during the Sea Explorer outing.
       The Court dismissed the original lawsuit, evidently based 
     on an insufficient nexus between the Boy scouts and the 
     youth's injury. Subsequently, the injured young man filed his 
     personal injury lawsuit directly against two of the adult 
     volunteers who participated in the Sea Explorer outing. 
     Following trial, an Oregon jury entered a verdict against the 
     two adult volunteers, finding them liable for some $7 
     million. In one of the largest monetary verdicts in Oregon, 
     the jury awarded $4.89 million dollars for future care and 
     lost earnings plus $2.14 million dollars for pain and 
     suffering. In accordance with Oregon state law, the amount of 
     the verdict will be reduced by the proportionate negligence, 
     approximately one-third, that the jury assigned to the 
     injured youth for his own negligent conduct. The Oregon 
     Circuit Judge presiding at trial also reduced the amount 
     awarded by the jury for pain and suffering to $500,000, 
     reflecting a statutory limit on non-economic damages that may 
     be awarded in personal injury suits in Oregon.
       The Oregon jury's verdict in this case against the Sea 
     Explorer adult volunteers brings the civil justice dilemma 
     into striking focus. The case was born of a tragic accident 
     in which a young man's life and future were forever changed 
     by a debilitating permanent injury. But this tragedy may have 
     been compounded, not alleviated, by finding culpability and 
     imposing liability on the adult volunteers under 
     circumstances suggesting an enlargement of the volunteers' 
     legal duty. The jury seemingly held the volunteers to a 
     standard of care requiring them constantly to supervise the 
     youth entrusted to their charge, even for activities which 
     under other circumstances may routinely be permitted without 
     such meticulous oversight.
       Any parent entrusting their children to the care and 
     supervision of another should expect and demand that all 
     reasonable and prudent care be taken in discharging that 
     responsibility. However, this does not mean that this duty of 
     care must be carried out in such an extraordinary manner that 
     only constant supervision of the youth in their care, 
     regardless of age and other factors, will suffice for 
     volunteers to satisfy their legal responsibility. Certainly, 
     the circumstances surrounding tragic incidents should be 
     carefully examined. All relevant facts and circumstances 
     should be given due weight and consideration in judging 
     whether an adult volunteer has adequately met the 
     responsibility to supervise a child entrusted to his care. 
     But circumstances will nonetheless occur where senseless 
     tragedies happen without anyone being legally to blame. As in 
     the case of other legal duties, adequate supervision should 
     mean reasonable and prudent conduct as required under the 
     circumstances as they existed at the time. Organizations 
     serving the youth in our community, as well as those 
     fulfilling other beneficent purposes, should not be forced 
     into the role of guaranteeing a safe harbor free of all risk. 
     Likewise, neither should volunteers be held a standard that 
     may be infeasible, or even unattainable.
       To choose otherwise would mean that the civil justice 
     system needs to resolve every mishap and inexplicable tragedy 
     by identifying someone to bear legal responsibility for a 
     victim of those circumstances. This may, or may not, have 
     happened in the case of the Multnomah County Circuit Court 
     jury's verdict against the Scout volunteers. But the 
     circumstances of the case, and the available evidence that 
     has been reported, seem to suggest that the jury overreached 
     in an effort to assign blame.
       As is the case of the Oregon verdict against the Sea 
     Explorer volunteers, there are a great many cases involving 
     injury to person, property, or other rights, which are 
     anything but trivial. In fact, their dimensions may be so 
     tragic that such cases motivate judges or juries to find 
     fault and assign blame where it might otherwise hesitate and 
     decline to do so. The judgments entered in such cases, 
     however, have other serious consequences. They obscure the 
     standards of conduct under which we should expect to comport 
     ourselves. This expectation of being able to determine, 
     before we act, whether we are engaging in conduct that is 
     right or wrong is a critical component to civil justice. 
     Moreover, when civil litigation affords redress to every 
     injury, regardless of whether the circumstances justify it 
     under the rule of law, those rights that are long established 
     and highly prized are commensurately demeaned. If virtually 
     every injury is entitled to compensation, then the most 
     important rights become lost in the sea of compensable 
     grievances that the courts recognize. Finally, we need to 
     underscore that a legal judgment entered in a single case can 
     have a multitude of consequences extending far beyond that 
     case itself. This surely is a reason for concern in the case 
     of volunteers to service organizations.
       The Boy Scouts afford their volunteers certain insurance 
     liability coverage or other indemnity for their acts or 
     omissions that may occur in the course of providing services 
     as a Scouting volunteer. This coverage is far from unlimited. 
     Similarly, other youth service and charitable organizations 
     may also be able to provide such insurance coverage for their 
     volunteers, but still others may not. Even with insurance 
     coverage available, many of the most talented and energetic 
     volunteers may eschew volunteer service, fearing that their 
     good intentions will buy themselves a lawsuit. This is a 
     particularly invidious effect, which is difficult to measure 
     and even harder to correct. Existing and prospective 
     volunteers may refuse to participate in many organizations 
     out of a genuine concern with accepting an unreasonable risk 
     of potential liability. Volunteers who might otherwise be 
     motivated to serve may be deterred from doing so based solely 
     on this concern for liability.
       The Supreme Court of the United States aptly characterized 
     the problem in Parratt v. Taylor 451 U.S. 527, 101 S. Ct. 
     1908 (1981). In Parratt, a prisoner, who lost his mail order 
     hobby materials when normal procedures for receipt of mail 
     packages were not followed, brought a federal civil rights 
     case for the alleged deprivation of a Constitutional right. 
     In its decision in that case, the Court seemed to forewarn 
     the civil justice system that not every wrong is entitled to 
     redress as a violation of Constitutional rights because 
     ``[i]t is hard to perceive any logical stopping place for 
     such a line of reasoning.'' Id. at 544. The Court's 
     observation, though made in the context of a civil rights 
     suit more than ten years ago, is equally salient today. The 
     civil justice system should not recognize a legal right for 
     every victim of circumstances. The rule of law should be used 
     to define our standards of conduct and promote consistency 
     and reasonable expectations in their application. The case 
     involving the Sea Explorer volunteers in Oregon serves to 
     reveal a truth. Despite the best of intentions, when misused 
     or used in unpredictable ways, the civil justice system ends 
     up serving no one, least of all those who volunteer.
                                 ______

      By Mr. LAUTENBERG:

  S. 1436. A bill to amend the Federal Water Pollution Control Act to 
allow certain privately owned public treatment works to be treated as 
publicly owned treatment works, and for other purposes; to the 
Committee on the Environment and Public Works.


 THE MUNICIPAL WASTEWATER TREATMENT FACILITY PRIVATE INVESTMENT ACT OF 
                                  1995

  Mr. LAUTENBERG. Mr. President, I rise to introduce the Municipal 
Wastewater Treatment Private Investment Act. This bill will remove an 
impediment to private investment in municipal wastewater treatment 
facilities and in doing so, will improve water quality, provide 
increased fiscal flexibility to local governments, and create jobs.
  Mr. President, our Nation's waters are a priceless resource. They 
provide recreational opportunities, habitat for fish and wildlife, and 
drinking water among other uses. But we cannot assure our citizens that 
our waterways will be clean unless we have adequate wastewater 
treatment facilities.
  And our wastewater treatment needs are staggering. According to the 
1992 EPA National Needs Survey, it will cost the United States $112 
billion to build necessary wastewater treatment facilities. My State of 
New Jersey's wastewater treatment needs alone are $4.759 billion. This 
includes close to $2 billion for wastewater treatment plants necessary 
for compliance with the Clean Water Act and an estimated $1.29 billion 
to reduce discharges of bacteria, garbage and other floatable debris, 
and other untreated waste from combined sewer overflows. The remaining 
needs are to construct new sewers and repair existing sewers.
  Federal dollars are necessary but insufficient to build these 
facilities. The 

[[Page S 17781]]
Senate VA/HUD appropriations bill includes $1.5 billion for State 
revolving loan funds. This funding level alone is insufficient to pay 
the costs local communities will have to bear to comply with the Clean 
Water Act. In addition, State revolving loan assistance will have to 
address other water quality needs such as storm water and nonpoint 
source pollution.
  Local communities are looking increasingly to privatization of local 
governmental programs as a way to pay for these programs. This is an 
obvious way for them to minimize the costs associated with Federal 
requirements, which are eating into their budgets. And the Federal 
Government should do everything possible to assist these efforts.
  In 1992, President Bush issued Executive Order 12803, which made it 
easier for local governments to privatize facilities that have received 
Federal financing--including wastewater treatment facilities. EPA 
Administrator Carol Browner has expressed her support to continue these 
efforts. In a letter she wrote to Mr. Edward Limbach, vice president of 
the American Water Works Co. in Voorhees, NJ, Ms. Browner said:

       [W]e need to provide communities the opportunity to work 
     more closely with the private sector in financing 
     environmental infrastructure. Local officials are in the best 
     position to develop capital financing structures that meet 
     their particular needs. We find that communities throughout 
     the Nation are taking the lead in ``reinventing government'' 
     and acknowledging the ability of private capital to enhance 
     public investment. The EPA is committed to supporting these 
     communities and allowing them flexibility in financing the 
     infrastructure systems needed to achieve the environmental 
     protection our citizens demand.

  EPA has an initiative underway to encourage private investment in 
wastewater treatment facilities.
  I urge the Congress to join with the administration in providing 
flexibility to local officials struggling to address the wastewater 
needs of this country. One problem identified by EPA which requires 
legislation concerns the phrase ``publicly owned treatment works'' or 
[POTWs]. This is the phrase used in the Clean Water act to identify 
what we all know to be municipal sewage facilities. Under the act, 
POTWs, treating municipal waste, are required to provide a level of 
treatment known as secondary treatment. However, if a private company 
offered to provide the same municipal waste services to the same 
community, it would have to meet a different treatment standard only 
because it is not a publicly owned treatment work.
  Mr. President, the level of waste- water treatment should be based on 
the quality of the receiving water, or a national technology standard--
it should not turn on the tax status of the owner of the sewer pipe.
  My bill would define publicly owned treatment works to include waste- 
 water facilities which are privatized or jointly owned by public and 
private partners. The legislation would remove the uncertainty 
regarding the environmental standards governing privately owned 
wastewater treatment facilities providing municipal wastewater 
services. It would require the same environmental standards for 
municipal wastewater treatment facilities owned in whole or in part by 
private investors as would apply to publicly owned treatment works. 
Communities and their citizens should not face an additional burden 
imposed by the Federal Government simply because they are developing 
innovative means to pay for a clean environment.
  This bill would have numerous positive benefits. Perhaps most 
importantly, it would lead to more construction of wastewater treatment 
facilities. According to a report done by NatWest Washington Analysis, 
potential private investment in municipal wastewater treatment 
facilities could reach $2 billion a year. This would double the Federal 
investment in wastewater facilities.
  To the extent that this investment is in new facilities, there will 
be more treatment facilities and cleaner water. The legislation also 
would help private capital flow into wastewater systems facing 
upgrades, expansions and new requirements.
  Under the legislation, private and public/private facilities would 
have to comply with all of the same requirements that publicly owned 
facilities must comply with. Industrial facilities discharging into 
sewers and treatment plants, whether public or private, would continue 
to be subject to the pretreatment requirements of the Clean Water Act.
  The legislation also will lead to additional jobs. According to a 
study prepared by Apogee Research, every $1 billion spent on wastewater 
facility investment generates 34,200 to 57,400 jobs.
  The bill also would mean more capital investment to protect and 
prolong the extensive Federal investment in existing structures.
  Privatization gives local governments which must comply with the 
Clean Water Act an additional fiscal tool for construction and 
maintenance of these facilities. It provides equitable treatment of 
communities that choose to pursue alternative financing on their own 
rather than depending on limited Federal funds.
  Mr. President, this bill will help the private sector provide the 
infrastructure financing which is essential for economic growth. It 
will give local governments with limited financial resources another 
tool to address their budgetary problems. It will generate jobs. And it 
will improve the quality of the Nation's waters.
  This proposal is endorsed by the National Association of Water 
Companies, the National Council for Public-Private Partnership, the 
Utility and Transportation Contractors Association of New Jersey, the 
National Utility Contractors Association, and the Water and Wastewater 
Equipment Manufacturers Association.
  I urge my colleagues to support this legislation.
  I ask unanimous consent that the text of the bill be included in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1436

       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 ``Municipal Wastewater 
     Treatment Facility Private Investment Act of 1995''.

     SEC. 2. FINDINGS.

       Congress finds that--
       (1) municipal wastewater treatment construction needs 
     exceed $100,000,000,000;
       (2) Federal assistance for State revolving loan programs 
     will provide funding for only a portion of the municipal 
     wastewater treatment facilities;
       (3) increasing the amount of funds invested by the private 
     sector in municipal wastewater treatment facilities would--
       (A) help address the funding shortfall referred to in 
     paragraph (2);
       (B) stimulate economic growth;
       (C) lead to an increase in the construction of wastewater 
     treatment facilities and jobs;
       (D) result in a cleaner environment; and
       (E) provide a greater degree of fiscal flexibility for 
     local governments in meeting Federal mandates; and
       (4) the most effective way to encourage an increase in the 
     level of involvement of the private sector in the provision 
     of municipal wastewater services is to provide for the 
     uniform regulation of municipal wastewater treatment plants 
     without regard to whether the wastewater treatment plants are 
     publicly or privately owned or under the control of a public 
     and private partnership.

     SEC. 3. PUBLICLY OWNED TREATMENT WORKS DEFINED.

       Section 502 of the Federal Water Pollution Control Act (33 
     U.S.C. 1362) is amended by adding at the end the following 
     new paragraphs:
       ``(21) As used in titles I, III, and IV, and this title, 
     the term `publicly owned treatment works' means a device or 
     system used in the collection, storage, treatment, recycling, 
     or reclamation of municipal wastewater (or a mixture of 
     municipal wastewater and industrial wastes of a liquid 
     nature) with respect to which all or part of the device or 
     system--
       ``(A) was constructed and is owned or operated by a State 
     or municipality;
       ``(B) was constructed, owned, or operated by a State or 
     municipality and the ownership has been transferred (in whole 
     or in part) to a private entity that is a regulated utility 
     or that has in effect a contract with a State or municipality 
     to receive municipal wastewater (or a mixture of municipal 
     wastewater and industrial wastes of a liquid nature) from 
     sewers, pipes, or other conveyances, if the facility is used 
     in a manner prescribed in the matter preceding subparagraph 
     (A) by the private entity; or
       ``(C) is owned or operated by a private entity that is a 
     regulated utility or that has in effect a contract with a 
     State or municipality to receive municipal wastewater (or a 
     mixture of municipal wastewater and industrial wastes of a 
     liquid nature) from sewers, pipes, or other conveyances 
     within a service area that would otherwise be served by the 

[[Page S 17782]]
     State or municipality, if the facility is used in a manner prescribed 
     in the matter preceding subparagraph (A).
       ``(22) The term `regulated utility' means a person, firm, 
     or corporation with respect to which--
       ``(A) a State water pollution control agency grants a 
     license to own or operate (or both) a wastewater treatment 
     facility; and
       ``(B) a State regulates the fees or other charges of the 
     utility.''.
       By Mr. THURMOND:

  S. 1437. A bill to provide for an increase in funding for the conduct 
and support of diabetes-related research by the National Institutes of 
Health; to the Committee on Labor and Human Resources.

                          ____________________