[Congressional Record Volume 142, Number 130 (Thursday, September 19, 1996)]
[Senate]
[Pages S11033-S11041]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. CRAIG (for himself and Mr. Kempthorne):
S. 2092. A bill to prohibit further extension or establishment of any
national monument in Idaho without full public participation and an
express Act of Congress, and for other purposes; to the Committee on
Energy and Natural Resources.
IDAHO NATIONAL MONUMENT LEGISLATION
Mr. CRAIG. Mr. President, yesterday afternoon President Clinton stood
on the edge of the Grand Canyon and proclaimed, by Executive order,
through the National Antiquities Act, the designation of a national
monument in southern Utah of 1.7 million acres.
Was his action illegal? No. It certainly was not, or it does not
appear to be at this moment. What is frustrating to those of us in the
West who have large expanses of public land is that the President
sought no counsel, did not even consult with the Senators from Utah
until the very last minute, did not talk to the Governor, to the State
legislators or to the county commissioners in whose counties this large
expanse of 1.7 million acres was involved. He simply stood on the banks
or the edge of the Grand Canyon and proclaimed--yes, this is a device
that was used by President Roosevelt who set aside the Grand Canyon
years ago; it was a device that was oftentimes used prior to the
enactment of the National Environmental Policy Act or the Federal Land
Use Management Act, NEPA and FLMPA, because there was no certain public
process to ensure the protection of valuable lands or, more
importantly, to involve the public in them. The Congress simply had not
moved in that direction at that time when the National Antiquities Act
came about.
That is not the case today. In my opinion, the President yesterday
standing on the edge of the Grand Canyon violated his public trust in
failing to openly and publicly involve all of the necessary people in
making this decision and making sure that private rights, property
rights, water rights, grazing rights, mining rights, all of those kinds
of things, were taken into consideration.
In fact, I stood at a press conference yesterday afternoon in which
the Democrat Congressman from whose district this large expanse of land
was proclaimed by the President yesterday, and he said that at 11
o'clock the night before he was on the phone with the President saying,
``But, Mr. President,'' and the President was saying, ``Oh, don't
worry. We will take care of you here and we will take care of you
there. We will protect hunting rights.''
Well, Mr. President, those kind of things do not exist in a national
monument. You do not allow hunting. You do not allow grazing. You do
not allow mining. Yet, this President, in the dark of night, in the wee
hours before he was planning this great publicity event for his
reelection, was telling the Democrat Congressman, ``I will take care of
you,'' after the fact.
Now, the reason that was happening is because this President sought
no public process. As certainly the Presiding Officer knows, over the
last good number of years we have looked at a lot of public properties.
We spent 10 years designating over 5 million acres of land in southern
California as wilderness. I went to California three times in public
hearings. It was thoroughly debated on the floor. All of the rights
were taken care of.
Finally, this Congress acted and designated as wilderness a large
chunk of the southern California desert. However, every issue was taken
into consideration prior to that happening. That simply did not happen
yesterday with this President. He was interested in the sound bite and
the evening news and his politics and the campaign. He trampled all
over the rights of citizens and all over the public process. I am
saddened by that.
It is for that reason today I am introducing legislation that would
deny him that right in the State of Idaho. I hope other Senators would
join with me who have large expanses of public land that now might be
at risk, because this President, for his environmental political gains,
would select another piece of property. All I am saying is that the
National Antiquities Act does not apply in Idaho unless there is a
public process and unless the Congress agrees or consents or
authorizes.
What is important here is that I am not denying what the President
did. What I am denying is his right to do it in the back rooms in the
dark of night, even with his own Secretary of Interior last Friday and
through the weekend not being able to say that this, in fact, was going
to happen.
It was the chief of staff of the White House, Leon Panetta, who
finally called the Senators from Utah just before it happened and
announced that it was going to happen. That should not happen. We want
public process. This President has pounded us on public process. We
will have public process in Idaho. I am not denying that some lands in
Idaho might one day be selected as a national monument. But what I am
saying is that the citizens of the State of Idaho, the Governor of the
State of Idaho, the county commissioners, the congressional delegation,
and this Congress, because it's public land, will participate in the
process of making those decisions. We don't want this President, or any
President, running roughshod over the State of Idaho, or any other
State for that matter.
______
By Mr. FAIRCLOTH:
S. 2093. A bill to require the Secretary of Health and Human Services
to rescind approval of the District of Columbia's welfare reform
waiver; to the Committee on Finance.
district of columbia welfare legislation
Mr. FAIRCLOTH. Madam President, I rise today to introduce legislation
that would rescind the approval granted in August to the District of
Columbia's welfare waiver.
I would first like to acknowledge and I want to recognize the
leadership of my colleague from Oklahoma, Senator Nickles, who recently
introduced similar legislation which would require the enforcement of a
5-year time limit on welfare benefits in the district.
Senator Nickles' approach requires that the District live by the 5-
year requirement. My legislation simply repeals the entire waiver.
[[Page S11034]]
Madam President, today's Washington Post reports that the waiver was
completed just 2 days before the welfare bill became law. In fact, on
July 31 when the District was given notice that the President was going
to sign the welfare bill, the District sent its waiver application in
within one week. Now, this is the fastest anything has ever happened in
the District of Columbia. This is the one efficient thing they have
ever done, getting their waiver papers in. The waiver application was
granted within 2 weeks. Now, have you ever heard of the bureaucrats at
HHS doing anything in 2 weeks? But they got this out.
Madam President, the whole episode is a sham. The District of
Columbia is a flat joke that is not funny and its government is a
laughingstock. Its welfare system is worse.
Madam President, it is apparent that the Clinton administration is
not serious about welfare reform. The President signed the bill with
his fingers crossed behind his back. He signed it because, according to
Time magazine, the man who had his ear, his political consultant guru
and advisor, Dick Morris, told him to sign it and got him to sign it.
It is crystal clear that should the Democrats regain control of
Congress--which is not going to happen, but if they should--the welfare
bill would be repealed immediately, and they as much as said so at the
Chicago convention.
Madam President, it has gotten so bad in the District of Columbia you
will be able to collect welfare for 15 years--for 15 years, as long as
you are making a good-faith effort to find work.
Let me give you just an example or two of what finding work in the
District of Columbia involves: Getting your driver's license is finding
work; attending self-esteem classes is work. Now, where else in this
country could attending self-esteem classes be called work?
Madam President, only in the District of Columbia would such a
laughingstock of a welfare system continue. And only with the Clinton
administration in power could it continue. Sadly, the joke is on us.
The joke is on the people of this Nation. The joke is on the people of
Kansas and North Carolina. They are the ones that are subsidizing and
paying for the District of Columbia's folly.
We just passed a bill giving the District of Columbia $660 million.
We do so every year. Now, how is the money used? It is not used. It is
misused and it is thrown away at a rate that the average American could
not understand.
They cannot open the schools on time. Only 52 percent of high school
students actually graduate despite the fact they spend more money per
student than any city in the United States--52 percent graduate. The
District has the same number of public employees as the City of
Chicago--which is five times larger. And Chicago is 5 times larger. Can
you imagine a city when 1 of every 8 citizens is a city employee? It's
a disaster. It has more employees per resident than any city in the
Nation. They don't pave their roads, and they don't fix their roads. In
fact, they are required, by law, to have a local match for Federal road
money. But we had to waive that, too. Why did we have to waive it?
Because they have thrown away their money on welfare, graft, and
giveaway programs, and they simply don't have the money to match it.
They have thrown it away in every conceivable way, such as fake
employees and employees that don't work. One out of every 8 citizens is
employed. They paid Medicaid payments to 20,00 people who weren't
eligible; 20,000 people who weren't eligible, they paid it to. The
water is contaminated. You have to get up in the morning and boil your
water before you can drink it.
The prison system is notorious for its numerous escapes. In fact, it
is not a prison system, it is a sieve. Mr. President, our capital is a
disaster.
Now comes the mother of all bad ideas for the capital, and that is to
give the District a massive tax cut. The concept is that people will
move to the district, revenue will increase, and all will be fine.
First, the tax break will give a cushy tax break to the wealthy
people who seek a nice tax shelter by maintaining a phony residence in
Washington and living in Palm Beach.
Second, it will give all the overpaid bureaucrats that live here a
tax break. But most important, the tax cut ignores what happens to the
revenue. Will it be somehow be better spent, or will it be wasted,
stolen, abused, and thrown away, as it is now? Of course, it will
because we have done nothing to get to the root of the problem, which
is the District's government and the people running it.
Mr. President, it has gotten so bad that a Los Angeles Times article
on conditions in Washington opened with a quote from an Egyptian
diplomat. He said:
Every day here in Washington reminds me more and more of
Cairo.
Doesn't that say it all? There isn't any way the city could be run
worse.
Mr. President, the Nation's capital is just that. It belongs to the
Nation. It was set apart as the District of Columbia by the Founding
Fathers so that it would not become involved in local politics, and it
has become a mishmash of bad local politics.
We need a capital that the people of America can be proud of, a
capital that visitors from my State and every State can come to and
feel safe. That isn't the case today. Rather than a massive tax cut, we
need to seriously consider another form of government for the
District--not home rule, not congressional rule, but input from the 50
States who are paying for the operation of this Capital City. It should
be one we can be proud of, and it's one that we have to make continuous
apologies for.
It is time for the people of this country to take control of it, as
was intended by our forefathers. I think the sooner we do it the
better.
______
By Mr. HARKIN:
S. 2094. A bill to inform and empower consumers in the United States
through a voluntary labeling system for wearing apparel and sporting
goods made without abusive and exploitative child labor, and for other
purposes; to the Committee on Commerce, Science, and Transportation.
The Child Labor Free Consumer Information Act of 1996
Mr. HARKIN. Mr. President, I rise to introduce the Child Labor Free
Consumer Information Act of 1996, legislation to establish a voluntary
labeling system to help inform American consumers whether wearing
apparel or sporting goods they see on the store shelves are made
without the use of abusive and exploitative child labor.
Although it is late in the session, I believe we should begin a
substantive dialog about ending child labor right now. That is why I am
introducing this legislation today. And I intend on reintroducing this
measure at the beginning of the next Congress.
A Worldwide Scourge
When I speak about child labor, I am not talking about children
helping out on the family farm or running errands after school. I am
speaking about children who are forced to work in hazardous and
dangerous conditions--children denied the classroom and driven into the
workrooms.
Child labor is a scourge around the world. But we can't dismiss the
problem simply because it may occur an ocean away. We cannot ease our
conscience by declaring it a ``them'' problem, because it is not. It is
an ``us'' problem. And all of us can do something to stop it.
Take a moment to look around. Maybe it's the shirt you have on right
now. Or the silk tie or blouse. Or the soccer ball you kick around with
the kids in the backyard. Or the tennis shoes you wear on weekends.
Chances are that you have purchased something--perhaps many things--
made with abusive and exploitative child labor. And chances are you
were completely unaware that was the case. That is hardly surprising.
Because the tag we see for items in our stores tell us how much we have
to pay to buy it. But it doesn't tell us how much someone else had to
pay to make it.
For example, the price tag on a soccer ball doesn't tell us that a
young child in South Asia--perhaps no older than 5 years of age--paid
to make it by working in cramped conditions, stitching together balls
for hours at a time and a dollar a day.
Last year, the United States imported almost 50 percent of the
wearing
[[Page S11035]]
apparel sold in America and the garment industry netted $34 billion.
According to the Department of Commerce, last year the United States
imported 494.1 million pairs of athletic footwear and produced only
65.3 million here at home.
Americans may ask, ``What does this have to do with us?'' It is quite
simple. By protecting the rights of workers everywhere, we will be
protecting jobs and opportunities here at home. A U.S. worker cannot
compete with a 12 year old working 12 hours a day for 12 cents an hour.
Public Support
As I have traveled around the country and spoken with people about
the issue of abusive and exploitative child labor, I have found that
consumers--ordinary Americans--want to get involved. They want
information. They want to know if products on the shelves are made by
children. And they do not want to buy it if it is.
Public opinion polls back that up. According to a survey sponsored by
Marymount University last year, more than three out of four Americans
said they would avoid shopping at stores if they were aware that the
goods sold there were made by exploitative and abusive child labor.
Consumers also said that they would be willing to pay an extra $1 on a
$20 garment if it were guaranteed to be made under legitimate
circumstances.
Mr. President, consumers have spoken. They do not want to reward
companies with their hard earned dollars by buying products made with
abusive and exploitative child labor.
This body has also spoken. On September 23, 1993, the Senate put
itself on record in opposition to the abhorrent practice of exploiting
children for commercial gain. This body passed a sense-of-the-Senate
resolution that I introduced which asserted that it should be the
policy of the United States to prohibit the importation of products
made with the use of abusive and exploitative child labor. This was the
first step to ending child labor. Now it's time for the next.
Let the Buyer Be Aware
The Child Labor Free Consumer Information Act of 1996 will inform and
empower American consumers by establishing a voluntary labeling system
for wearing apparel and sporting goods made without abusive and
exploitative child labor.
In my view, a system of voluntary labeling holds the best promise of
giving consumers the information they want--and giving the companies
that manufacture these products the recognition they deserve.
The centerpiece of this legislation is the establishment of a working
group of members from the wearing apparel and sporting goods
industries; labor organizations; consumer advocacy and human rights
groups; along with the Secretaries of Commerce, Treasury, and Labor.
This Child Labor Free Commission would establish a labeling standard
and develop a system to assure compliance that items were not made with
abusive and exploitative child labor.
In my view, Congress cannot do it alone through legislation. The
Department of Labor cannot do it alone through enforcement. It takes
all of us--from the private sector to labor and human rights groups--to
take responsibility and work together to end abusive and exploitative
child labor.
Voluntary Approach
Let me be clear, companies can choose whether to use the label. This
bill is not about big government telling the private sector what to do.
It is based on the commonsense approach that a fully informed American
consumer will make the right and moral choice and vote against abusive
and exploitative child labor with their pocketbook.
We have seen such an approach work effectively with the Rugmark label
for hand-knotted oriental carpets. It is operating in some European
countries. Consumers who want to buy child labor-free carpets can just
look for the Rugmark label.
Over 150,000 carpets have received the Rugmark label and been shipped
to Germany. Rugmark licenses already provide 30 percent of German
carpet imports from India. And I am pleased to say that there are now
two wholesalers in New York that offer carpets with the Rugmark label.
Building on Progress
Mr. President, the progress that has been made on eradicating abusive
and exploitative child labor is irreversible. We must continue working
together to end child labor for all. And I believe my bill provides a
road map to reaching that goal.
It allows the consumer to know more about the products they buy and
it gives companies that use the label the recognition they deserve. I
urge my colleagues to support my bill.
Our Nation began this century by working to end abusive and
exploitative child labor in America, let us close this century by
ending child labor around the world.
Mr. President, I ask unanimous consent that additional material be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Marymount University Center for Ethical Concerns
new garment workers study finds americans intolerant of sweatshops in
garment industry
Arlington, VA--Retailers selling clothing made in
sweatshops operating in the United States could feel the ire
of American consumers, suggests a new survey sponsored by
Marymount University in Arlington, Virginia. The new study
shows that consumers would avoid stores that sell goods made
in sweatshops and be more inclined to shop at stores working
actively to prevent garment worker abuses.
According to the survey, more than three-fourths of
Americans would avoid shopping at stores if they were aware
that the stores sold goods made in sweatshops. Consumers also
are willing to pay a price for assurances that the goods they
buy are not made in sweatshops. An overwhelming majority (84
percent) say they would be willing to pay up to an extra $1
on a $20 garment if were guaranteed to be made in a
legitimate shop.
The study, sponsored by Marymount's Center for Ethical
Concerns and the Department of Fashion Design and
Merchandising, was prompted by the recent discovery of
sweatshops operating in the United States in which illegal
aliens smuggled into the country were forced to produce
garments under almost slave labor conditions. In one factory,
raided earlier this year by U.S. officials, workers had been
confined in a barbed wire-enclosed compound and forced to
work between 16 and 22 hours a day. Workers were paid less
than $1 an hour and essentially held captive until they had
repaid the cost of their passage to the United States, a
process that took years in some cases.
Since these revelations, the U.S. Department of Labor has
been working with retailers to encourage greater diligence in
policing the industry voluntarily and plans in the near
future to release a list of companies that have agreed to
cooperate in these efforts. The new study shows that a
substantial majority of Americans (66 percent) would be more
likely to patronize stores that they know are cooperating
with law enforcement officials to prevent sweatshops. If such
a list were published, more than two-thirds (69 percent) of
consumers say they would take this information into account
when deciding where to do their shopping this holiday season.
``It is gratifying to know that Americans condemn these
sweatshop conditions and are willing to demonstrate that
commitment when they shop, even if it costs them a few
pennies. The industry, including retailers, has a
responsibility to make sure it is not selling garments made
in sweatshops, and the public is willing to hold them
accountable,'' said Sr. Eymard Gallagher, RSHM, president of
Marymount University. ``Despite the competitiveness in the
industry, we can't close our eyes to these kinds of
conditions that we thought had disappeared years ago,'' she
said.
The telephone survey of 1,008 randomly selected adults, was
conducted by ICR Survey Research Group of Media, PA, at the
request of Marymount. The survey has a margin of error of
plus or minus 3 percentage points.
Marymount University's fashion design and fashion
merchandising programs are among the leaders in this field in
the United States. Marymount is an independent, Catholic
university, emphasizing excellence in teaching, attention to
the individual, and values and ethics across the curriculum.
Located in Arlington, Virginia, Marymount enrolls 4,200 men
and women in its 34 undergraduate and 24 master's degree
programs.
study background and objectives
United States officials recently discovered that workers
who had been smuggled into this country were making garments
in sweatshops where they were forced to work long hours under
extremely poor working conditions for less than the minimum
wage. As a result, this research was conducted to determine:
Whether respondents would avoid shopping at retailers if
aware they sold garments made in sweatshops;
Whether respondents would be more inclined to shop in
retail stores cooperating with law enforcement officials to
prevent sweatshops;
Whether respondents would be willing to pay $1 more for a
$20 garment if it were guaranteed to be made in a legitimate
shop;
[[Page S11036]]
Whether respondents would be more likely this holiday
season to shop in retail stores on a forthcoming list of
retailers assisting authorities in their effort to end abuse
of United States garment workers; and
Whether the manufacturers or the retailers should have the
responsibility of preventing sweatshops.
research methodology
The research entailed a telephone interview insert in ICR
Survey Research Group's EXCEL Omnibus. Each EXCEL includes a
national random sample of approximately 1,000 adults (18+),
half male and half female.
Interviewing was conducted from Friday, October 27 through
Tuesday, October 31. A total of 1008 interviews were
completed. Data has been weighted to reflect the U.S.
population 18 years of age and older (188,700,000).
in a nutshell . . . here are the findings; retailers--beware of
sweatshop garments
Americans overwhelmingly support the idea of officials
publishing a list of retailers who assist law enforcement
agencies in their effort to end abuse of United States
garment workers. Seven-in-ten respondents indicate they would
be more likely to shop at the stores this holiday season that
cooperate to end garment worker abuse. Consumers are willing
to pay a price for assurances that goods they buy are not
made in sweathshops. 84% of consumers would pay an additional
$1 on a $20 item if they knew the garment was guaranteed to
be made in a legitimate shop.
Most Americans (76%) blame the existence of sweatshops on
the manufacturers who employ the contractors or workers.
However, if consumers knew a retailer sold garments that were
made in sweatshops, nearly eight-in-ten would avoid shopping
there. As the holiday season starts to kick-off, retailers
would be wise to ensure their garments were in fact made in
legitimate shops. Given the potential for enticing customers
with legitimately made garments, and the potential for losing
customers if caught selling sweatshop-made garments,
promoting legitimately made garments provides a strategic
business opportunity for retailers.
______
By Mr. SIMON (for himself and Mr. Pryor):
S. 2095. A bill to promote the capacity and accountability of
Government corporations and Government sponsored enterprises; to the
Committee on Governmental Affairs.
The Government Corporation and Government Sponsored Enterprise
Standards Act
Mr. SIMON. Mr. President, my involvement in the issue of
student aid over the past few years has given me a greater
understanding of so-called government-sponsored enterprises. I have
been critical of Sallie Mae, the Student Loan Marketing Association,
for its lobbying activities and its high salaries. Five years ago I
began calling for the elimination of Sallie Mae's ties to the
Government.
But I would like to go further in addressing this question of
corporations that are connected in some way with the Federal
government. How do they know when their purpose has been achieved, and
their ties to the government should be cut? How do we make sure that
they do not become so strong politically that the ties can never be
cut? Should they be exempt from federal, state, and local taxes? Should
the securities laws apply them?
Today, along with my colleague, Senator Pryor, I am introducing a
bill that would address these and other questions. The bill would
establish standards for the creation of new Government-sponsored
enterprises, those corporations that are created by Congress but are
owned by private investors. The bill also would set guidelines for a
very different type of corporation: those that are actually owned by
taxpayers as a part of the Federal Government structure.
This legislation is the result of concerns raised by the National
Academy of Public Administration. Harold Seidman, in House testimony on
behalf of the Academy last year, pointed out that the Congress has not
used any consistent criteria for determining when a government
corporation is appropriate and when it is not. He also raised questions
about some of the privileges that have been granted to Government-
sponsored enterprises.
The purpose of this legislation is to ensure that, as Congress
considers the creation of new government corporations and government-
sponsored enterprises, it does so with its eyes wide open. It would
also require some of these entities to plan for eventual privatization,
and would force Congress to review their status on a regular basis.
I know that it is not possible for Congress to act on this
legislation in these final weeks. But I hope some of my colleagues will
take up where I have left off, and work to establish much-needed
standards where Government intersects with business.
______
By Mr. LAUTENBERG (for himself, Mrs. Boxer, and Mr. Kerry):
S. 2096. A bill entitled the ``Environmental Crimes and Enforcement
Act of 1996''; to the Committee on Environment and Public Works.
The Environmental Crimes and Enforcement Act of 1996
Mr. LAUTENBERG. Mr. President, today I am joined by Senator
Kerry in introducing legislation, the Environmental Crimes and
Enforcement Act of 1996, to increase penalties and strengthen
enforcement for environmental crimes.
Mr. President, most Americans consider themselves environmentalists.
Millions of Americans participate in voluntary recycling and do what
they can to save the environment. Similarly, many companies spend
substantial amounts to comply with environmental laws, and many do much
more than required.
Mr. President, expenditures for environmental controls are a cost of
business that, in the short run, can adversely affect a company's
bottom line. But these controls benefit all Americans. They lead to
cleaner water, cleaner air, safer employees and healthier children.
Mr. President, when a business invests in environmental protection to
comply with our laws, it should not be placed at a competitive
disadvantage as a result. That is, it shouldn't have to compete against
other firms that save costs by disregarding their environmental
responsibilities. But to protect against that kind of unfairness, Mr.
President, Government must strongly enforce environmental laws. And
that is what this bill will help ensure.
Mr. President, this bill was developed by the Department of Justice
after consultation with State, local and Federal prosecutors from
around the country. It is aimed at bad actors who violate our
environmental laws purposely, intentionally, or with knowing disregard
for the impact of their actions. These are not people who accidently
miss a deadline or even negligently forget to file for a needed permit.
They are criminals who know what they're doing, and who generally are
flouting our laws simply to make a buck.
Mr. President, we need to get tough with those who intentionally
violate environmental laws. This bill would help in several ways.
The bill would make it a federal crime to attempt to violate our
environmental laws. This would make it much easier to enforce these
laws, and to prevent environmental degradation before it happens. Most
federal laws, other than criminal environmental laws now include
provisions for attempted criminality.
The legislation also would give federal prosecutors tools to work
more effectively with their state counterparts. It would improve
training of law enforcement personnel in the investigation of
environmental crimes. It also would facilitate prosecution by extending
the statute of limitations when a violator has tried to conceal
environmental crimes.
Another provision in the legislation would allow judges to force
environmental criminals to pay to clean up the mess they made. That,
Mr. President, is only fair. If a child has to clean up his own room,
surely a corporation should have to clean up their own mess when they
intentionally dump toxic chemicals.
Finally, Mr. President, this legislation would give judges the
authority to increase penalties when an environmental crime leads to
serious injury or death. This should help deter the most serious abuses
of our laws.
Mr. President, none of these proposals, by itself, will solve the
problem of environmental crime. But, together, they would make a real
difference. They would help improve the quality of our environment. And
they would help protect the majority of law-abiding businesses that
invest in environmental protection, and that abide by our laws in good
faith.
Mr. President, over the past 20 years, our economy has grown
considerably, but pollution has been reduced. This has occurred not
only because Congress passed environmental legislation.
[[Page S11037]]
It has also occurred because of the creativity of our scientists and
the commitment of American businesses. These law-abiding businesses, as
I have said, deserve to be treated fairly. They should be rewarded for
their diligence, not placed at an unfair competitive disadvantage.
Mr. President, I recognize, given the limited time remaining in the
104th Congress, that this legislation will not become law this year.
However, I intend to work in the next Congress to have hearings on this
bill, and I would welcome input from any interested parties.
Next year, I am hopeful that we can move in a bipartisan manner to
make any needed improvements, and to enact this legislation into law as
soon as possible.
Mr. President, I ask unanimous consent that a copy of the bill, S.
2096, and a section-by-section analysis be included in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 2096
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 Crimes and
Enforcement Act of 1996''.
SEC. 2. FINDINGS.
The Congress finds that--
(1) Federal investigation and prosecution of environmental
crimes play a critical role in the protection of human
health, public safety, and the environment;
(2) the effectiveness of environmental criminal enforcement
efforts is greatly strengthened by close cooperation and
coordination among Federal, State, local, and tribal
authorities; and
(3) legislation is needed to facilitate Federal
investigation and prosecution of environmental crimes and to
increase the effectiveness of joint Federal, State, local,
and tribal criminal enforcement efforts.
SEC. 3. JOINT FEDERAL, STATE, LOCAL, AND TRIBAL ENVIRONMENTAL
ENFORCEMENT.
(a) Chapter 232 of title 18 is amended by adding after
section 3673 the following new section 3674--
``Sec. 3674. Reimbursement of State, local, or tribal
government costs for assistance in Federal investigation
and prosecution of environmental crimes.
``(a) Upon the motion of the United States, any person who
is found guilty of a criminal violation of the Federal
environmental laws set forth in subsection (b) below, or
conspiracy to violate such laws, may be ordered to pay the
costs incurred by a State, local, or tribal government or an
agency thereof for assistance to the Federal government's
investigation and criminal prosecution of the case. Such
monies shall be paid to the State, local, or tribal
government or agency thereof and be used solely for the
purpose of environmental law enforcement.
``(b) This subsection applies to a violation of any of the
following statues, or conspiracy to violate any of the
following statutes--
``(1) Section 14(b) of the Federal Insecticide, Fungicide,
and Rodenticide Act (7 U.S.C. Sec. 136l(b));
``(2) Section 16(b) of the Toxic Substances Control Act (15
U.S.C. Sec. 2615(b));
``(3) Sections 10, 12, 13, and 16 of the Rivers and Harbors
Appropriations Act of 1899 (33 U.S.C. Sec. Sec. 403, 406,
407, 411);
``(4) Sections 309(c) and 311(b)(5) of the Federal Water
Pollution Control Act (33 U.S.C. Sec. Sec. 1319(c),
1321(b)(5));
``(5) Section 105(b) of the Marine Protection, Research,
and Sanctuaries Act of 1972 (33 U.S.C. Sec. 1415(b));
``(6) Section 9(a) of the Act to Prevent Pollution from
Ships (33 U.S.C. Sec. 1908(a));
``(7) Section 4109(c) of the Shore Protection Act of 1988
(33 U.S.C. Sec. 2609(c));
``(8) Sections 1423 and 1432 of the Safe Drinking Water Act
(42 U.S.C. Sec. Sec. 300h-2, 300i-1);
``(9) Sections 3008(d), 3008(e) and 3008(i) of the Resource
Conservation and Recovery Act of 1976 (42 U.S.C.
Sec. Sec. 6928(d), 6928(e), 6928(i));
``(10) Section 113(c) of the Clean Air Act (42 U.S.C.
Sec. 7413(c));
``(11) Sections 103(b) and 103(d) of the Comprehensive
Environmental Response, Compensation, and Liability Act (42
U.S.C. Sec. Sec. 9603(b), 9603(d));
``(12) Section 325(b)(4) of the Emergency Planning and
Community Right-to-Know Act of 1986 (42 U.S.C.
Sec. 11045(b)(4));
``(13) Section 303(a) of the Federal Land Policy and
Management Act of 1976 (43 U.S.C. Sec. 1733(a)); or
``(14) Sections 5124, 60123(a), and 60123(b) of title 49,
United States Code.''.
(b) The table of sections of chapter 232 of title 18,
United States Code is amended by adding the following after
the item relating to section 3673;
``3674. Reimbursement of State, local, or tribal
government costs for assistance in Federal investigation and
prosecution of environmental crimes.''.
SEC. 4. PROTECTION OF GOVERNMENT EMPLOYEES AND THE PUBLIC.
(a) Chapter 39 of title 18, United States Code, is amended
by adding the following new section:
``Sec. 838. Protection of government employees and the
public from environmental crimes.
``(a) Any person who commits a criminal violation of a
Federal environmental law identified in this subsection that
is the direct or proximate cause of serious bodily injury to
or death of any other person, including a Federal, State,
local or tribal government employee performing official
duties as a result of the violation, shall be subject to a
maximum term of imprisonment of twenty years, a fine of not
more than $500,000, or both, and, if the defendant is an
organization, to a fine of not more than $2,000,000. The laws
to which this subsection applies are--
``(1) Section 309(c)(2), 309(c)(4), or 311(b)(5) of the
Federal Water Pollution Control Act (33 U.S.C.
Sec. Sec. 1319(c)(2), 1319(c)(4), 1321(b)(5));
``(2) Section 105(b) of the Marine Protection, Research,
and Sanctuaries Act of 1972 (33 U.S.C. Sec. 1415(b));
``(3) Section 1423 or 1432 of the Safe Drinking Water Act
(42 U.S.C. Sec. Sec. 300h-2, 300i-1);
``(4) Section 3008(d) of the Resource Conservation and
Recovery Act of 1976 (42 U.S.C. Sec. 6928(d));
``(5) Section 113(c)(1) or 113(c)(2) of the Clean Air Act
(42 U.S.C. Sec. Sec. 7413(c)(1), 7413(c)(2));
``(6) Section 103(b) or 103(d) of the Comprehensive
Response, Compensation, and Liability Act (42 U.S.C.
Sec. Sec. 9603(b), 9603(d));
``(7) Section 325(b)(4) of the Emergency Planning and
Community Right-to-Know Act of 1986 (42 U.S.C.
Sec. 11045(b)(4)); or
``(8) Section 5124, 60123(a), or 60123(b) of title 49,
United States Code.
``(b) Any person who commits a criminal violation of
Federal environmental law identified in this subsection that
is the direct or proximate cause of serious bodily injury to
or death of any other person, including a Federal, State,
local or tribal government employee performing official
duties as a result of the violation, shall be subject to a
maximum term of imprisonment of five years, a fine of not
more than $250,000, or both, and, if a defendant is an
organization, to a fine of not more than $1,000,000. The laws
to which this subsection applies are--
``(1) Section 14(b) of the Federal Insecticide, Fungicide,
and Rodenticide Act (7 U.S.C. Sec. 136l(b)); or
``(2) Section 16(b) of the Toxic Substances Control Act (15
U.S.C. Sec. 2615(b)).
``(c) For purposes of this section, the term ``serious
bodily injury'' means bodily injury which involves--
``(1) unconsciousness;
``(2) extreme physical pain;
``(3) protracted and obvious disfigurement; or
``(4) protracted loss or impairment of the function of a
bodily member, organ, or mental faculty.
``(d) For purposes of this section, the term
``organization'' means a legal entity, other than a
government, established or organized for any purpose, and
such term includes a corporation, company, association, firm,
partnership, joint stock company, foundation, institution,
trust, society, union, or any other association of persons.''
(b) The table of sections of chapter 39 of title 18, United
States Code is amended by adding the following after the item
relating to section 837:
``Sec. 838. Protection of government employees and the
public from environmental crimes.''.
SEC. 5. ENVIRONMENTAL CRIMES TRAINING FOR STATE, LOCAL, AND
TRIBAL LAW ENFORCEMENT.
(a) This section may be cited as the ``Environmental Crimes
Training Act of 1996''.
(b) The Administrator of the Environmental Protection
Agency, as soon as practicable, within the Office of
Enforcement and Compliance Assurance, shall establish the
State, Local, and Tribal Environmental Enforcement Training
Program to be administered by the National Enforcement
Training Institute within the Office of Criminal Enforcement,
Forensics and Training. This Program shall be dedicated to
training State, local, and tribal law enforcement personnel
in the investigation of environmental crimes at the Federal
Law Enforcement Training Center (FLETC) in Glynn County,
Georgia at the EPA-FLETC training center or other training
sites which are accessible to State, local, and tribal law
enforcement. State, local, and tribal law enforcement
personnel shall include, among others, the following:
inspectors, civil and criminal investigators, technical
experts, regulators, government lawyers, and police.
SEC. 6. STATUTE OF LIMITATIONS.
(a) Chapter 213 of title 18, United States Code, is amended
by adding after section 3294 the following new section--
``Sec. 3295. Felony environmental crimes.
``(a) No person shall be prosecuted, tried, or punished for
a violation of, or a conspiracy to violate, any of the
offenses listed in subsection (b) unless the indictment is
returned or the information is filed within five years after
the offense is committed; however, when a person commits an
affirmative act that conceals the offense from any Federal,
State, local, or tribal government agency, that person shall
not be prosecuted, tried, or punished for a violation of, or
a conspiracy to violate, any of the offenses listed below in
subsection (b) unless the indictment is returned or the
information is filed within five years after the offense is
committed, or within three years after the offense is
discovered by a government agency, whichever is
[[Page S11038]]
later but in no event later than eight years after the
offense is committed.
``(b) This section applies to a violation of--
``(1) Section 309(c)(2), 309(c)(3), 309(c)(4), or 311(b)(5)
of the Federal Water Pollution Control Act (33 U.S.C.
Sec. Sec. 1319(c)(2), 1319(c)(3), 1319(c)(4), 1321(b)(5));
``(2) Section 105(b) of the Marine Protection, Research,
and Sanctuaries Act of 1972 (33 U.S.C. Sec. 1415(b));
``(3) Section 9(a) of the Act to Prevent Pollution from
Ships (33 U.S.C. Sec. 1908(a));
``(4) Section 4109(c) of the Shore Protection Act of 1988
(33 U.S.C. Sec. 2609(c));
``(5) Section 1423 or 1432 of the Safe Drinking Water Act
(42 U.S.C. Sec. Sec. 300h-2, 300i-1);
``(6) Section 3008(d) or 3008(e) of the Resource
Conservation and Recovery Act of 1976 (42 U.S.C.
Sec. Sec. 6928(d), 6928(e));
``(7) Section 113(c)(1), 113(c)(2), 113(c)(3), or 113(c)(5)
of the Clean Air Act (42 U.S.C. Sec. Sec. 7413(c)(1),
7413(c)(2), 7413(c)(3), 7413(c)(5));
``(8) Section 103(b) or 103(d) of the Comprehensive
Response, Compensation, and Liability Act (42 U.S.C.
Sec. Sec. 9603(b), 9603(d));
``(9) Section 325(b)(4) of the Emergency Planning and
Community Right-to-Know Act of 1986 (42 U.S.C.
Sec. 11045(b)(4)); or
``(10) Section 5124, 60123(a), or 60123(b) of title 49,
United States Code.''.
(b) The table of sections of chapter 213 of title 18,
United States Code is amended by adding after the item
referring to section 3294 the following new item--
``Sec. 3295. Felony environmental crimes.''.
SEC. 7. ATTEMPTS.
(a) Section 14(b) of the Federal Insecticide, Fungicide,
and Rodenticide Act (7 U.S.C. Sec. 1361(b)) is amended by
adding a new paragraph 14(b)(5)--
``(5) Attempts.--Any person who attempts to commit the
conduct that constitutes an offense under paragraph (1) of
this subsection shall be subject to the same penalties as
those prescribed for such an offense.''.
(b) Section 16(b) of the Toxic Substances Control Act (15
U.S.C. Sec. 2615(b)), is amended by inserting ``(1)'' before
``Any'' and by adding the following new paragraph--
``(2) Any person who attempts to commit the conduct that
constitutes any offense under paragraph (1) of this
subsection shall be subject to the same penalties as those
prescribed for such offense.''.
(c) Section 309(c) of the Federal Water Pollution Control
Act (33 U.S.C. Sec. 1319(c)), is amended by adding after
paragraph (7) the following new paragraph 309(c)(8)--
``(8) Any person who attempts to commit the conduct that
constitutes any offense under paragraphs (2), (3) or (4) of
this subsection shall be subject to the same penalties as
those prescribed for such offense.''.
(d) Section 105(b) of the Marine Protection, Research, and
Sanctuaries Act of 1972 (33 U.S.C. Sec. 1415(b)), is amended
by striking ``and'' at the end of paragraph (1), striking the
period at the end of (2)(B), and inserting ``; and'', and
adding after paragraph (2) the following new paragraph--
``(3) Any person who attempts to commit the conduct that
constitutes any offense under paragraph (1) of this
subsection shall be subject to the same penalties as those
prescribed for such offense.''.
(e) Section 9(a) of the Act to Prevent Pollution from Ships
(33 U.S.C. Sec. 1908(a)), is amended by inserting ``(1)''
before ``(A)'' and by adding the following new paragraph--
``(2) Any person who attempts to commit the conduct that
constitutes any offense under paragraph (1) of this
subsection shall be subject to the same penalties as those
prescribed for such offense.''.
(f) Section 3008 of the Resource Conservation and Recovery
Act of 1976 (42 U.S.C. Sec. 6928), is amended by adding after
subsection 3008(h) the following new subsection--
``(i) Any person who attempts to commit the conduct that
constitutes any offense under subsections (d) or (e) of this
section shall be subject to the same penalties as those
prescribed for such offense.''.
(g) Section 113(c) of the Clean Air Act (42 U.S.C.
Sec. 7413(c)), is amended by adding after paragraph 6 the
following new paragraph--
``(7) Any person who attempts to commit the conduct that
constitutes any offense under subsections (1), (2), or (3) of
this section shall be subject to the same penalties as those
prescribed for such offense.''.
SEC. 8. ENVIRONMENTAL CRIMES RESTITUTION.
(a) Section 3663(a)(1) of title 18, United States Code, is
amended by striking ``or'' before ``section 46312'' and
inserting ``or an environmental crime listed in section 3674
of this title,'' after ``section 3663A(c),''
(b) Subsection 3663(b) of title 18, United States Code, is
amended by striking ``and'' at the end of paragraph (4),
striking the period at the end of paragraph (5) and inserting
``; and'', and adding after paragraph (5) the following new
paragraph--
``(6) in the case of an offense resulting in pollution of
or damage to the environment, pay for removal and remediation
of the environmental pollution or damage and restoration of
the environment, to the extent of the pollution or damage
resulting from the offense; in such a case, the term `victim'
in section 3663(a)(2) includes a community or communities,
whether or not the members are individually identified.''.
____
The Environmental Crimes and Enforcement Act of 1996
section-by-section analysis
Section 1
Section 1 sets out the short title of this bill, the
``Environmental Crimes and Enforcement Act of 1996.''
Section 2
Section 2 states the Congressional findings upon which the
Act is based. Specifically, the findings are that
environmental criminal enforcement plays a critical role in
the protection of human health, public safety, and the
environment, and that these efforts are greatly enhanced by
close cooperation and coordination among Federal, State,
local, and tribal authorities. The purpose of the legislation
is to increase protection of the environment by strengthening
Federal law enforcement and by increasing the effectiveness
of joint Federal, State, local, and tribal criminal
environmental enforcement efforts.
Section 3
Section 3 authorizes Federal district courts to order
convicted criminals to reimburse States, localities, and
tribes for costs they incur during Federal environmental
prosecutions. Moneys paid to State, local, and tribal
governments under this provision may be used solely for
environmental law enforcement. This reimbursement provision
applies to prosecutions under the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA); the Toxic Substances
Control Act (TSCA); the Rivers and Harbors Appropriations Act
of 1899; the Federal Water Pollution Control Act; the Marine
Protection, Research, and Sanctuaries Act; the Act to Prevent
Pollution from Ships; the Shore Protection Act; the Safe
Drinking Water Act; the Resource Conservation and Recovery
Act; the Clean Air Act; the Comprehensive Environmental
Response, Compensation, and Liability Act; the Emergency
Planning and Community Right-to-Know Act; the Federal Land
Policy and Management Act; and 49 U.S.C. Sec. 5124, relating
to transportation of hazardous materials.
This provision will strengthen criminal environmental
enforcement by fostering cooperative efforts among Federal,
State, local, and tribal officials. State and local
inspectors, and investigators often initiate what become
Federal enforcement actions, and they continue to work with
Federal officials through the trial stage. For example, State
laboratories provide analytical support. Many State and
local prosecutors participate in joint task forces and
they sometimes are cross-designated as special assistant
U.S. attorneys. Although certain State courts may award
costs to State and local governments in State criminal
proceedings, Federal courts are not now expressly
authorized to order such reimbursement. Providing for
reimbursement will greatly increase the ability of State,
local, and tribal officials to cooperate in Federal
criminal proceedings to address violations of
environmental law. Joint enforcement efforts also make the
Federal program more responsive to local communities.
Because the court may order reimbursement only upon motion
of the United States, the discretion of both the Federal
prosecutor and the court will serve as a check against
unwarranted cost awards. Allowable costs are limited to those
incurred by a State, local, or tribal government or agency
for assistance to the Federal Government's investigation and
prosecution of a case. Costs imposed on a defendant are
payable directly to the State or local government in a manner
analogous to the payment of restitution directly to the
victims of a crime, thus obviating the need for a separate
Federal fund or Federal administrator to collect and transfer
the moneys.
Section 4
Section 4 provides for enhanced punishment where a criminal
violation of specified environmental laws directly or
proximately causes serious bodily injury or death to any
person, including any Federal, State, local, or tribal
government official.
Police officers, firefighters, paramedics, and other public
safety and public health personnel often are the first on the
scene of an environmental crime. In their efforts to protect
others from harm, they themselves may suffer serious injury
or death resulting from other people's criminal mishandling
of dangerous materials or failure to comply with their legal
duty to notify the government of releases of dangerous
substances. Members of the public can also be injured or
killed as a result of environmental crimes.
Section 4 will ensure that the criminals who cause this
suffering will face an appropriately severe, enhanced
punishment upon conviction. It does not establish a new or
different crime, but instead provides for enhanced terms of
imprisonment and enhanced fines for persons convicted of
felony violations under specified Federal environmental laws
where death or serious injury results. The laws covered by
this provision are: the Federal Water Pollution Control Act;
the Marine Protection, Research, and Sanctuaries Act; the
Resource Conservation and Recovery Act; the Clean Air Act;
the Comprehensive Environmental Response, Compensation,
and Liability Act; the Emergency Planning and Community
Right-to-Know Act; and 49 U.S.C. Sec. 5124. The section
also provides for enhanced penalties for environmental
misdemeanors under the Federal Insecticide, Fungicide and
Rodenticide Act and the Toxic Substances Control Act where
death or serious injury results, thereby transforming
those violations into felonies.
For enhanced punishment to be imposed, section 4 requires
that the defendant commit the underlying environmental crime
and that the crime be the direct or proximate
[[Page S11039]]
cause of serious bodily injury or death. The requirement of
``direct or proximate'' causation is in line with language
used in other criminal provisions, see, e.g., 18 U.S.C.
Sec. 844 (personal injury resulting from arson), and limits
the sentence enhancement to appropriate cases. Those who
commit environmental crimes, for example, by illegally
storing hazardous waste, are on notice that their actions may
cause serious injury or death to other persons. Unlike
existing endangerment provisions in certain environmental
statutes that apply to threatened injuries, Section 4
requires actual injury or death, but does not require that
the defendant intend or know of the injury or death that the
defendant's crime causes.
For the most part, the definition of ``serious bodily
injury'' in Section 4 follows similar definitions in 18
U.S.C. Sec. 113 (assaults within maritime and territorial
jurisdiction) and 18 U.S.C. Sec. 1365(g)(3) (tampering with
consumer products). The definition in Section 4, however,
does not include ``substantial risk of death.'' In other
words, actual serious bodily injury or death (not just the
risk of injury or death) must occur for enhanced punishment
to be imposed under Section 4. Section 4 also includes
``unconsciousness'' within the definition of ``serious bodily
injury,'' thereby conforming to the definition of that term
in the Federal hazardous waste laws at 42 U.S.C.
Sec. 6928(f)(6).
Section 4 specifically lists certain government employees
whose death or injury could trigger enhanced punishment. This
listing is not intended to exclude other persons, including
other government employees, from the provision's coverage,
but rather to emphasize that the specified government
employees are exposed to special risks and are thus
especially likely to benefit from the added deterrence and
protection engendered by this provision.
Section 5
Section 5 responds to the urgent need expressed by State,
local, and tribal officials for additional Federal training
on environmental criminal enforcement. It establishes within
the Environmental Protection Agency a separate program
dedicated to the training of State, local, and tribal law
enforcement personnel in the investigation of
environmental crimes.
States and local governments are undertaking an expanded
role in environmental enforcement, not only of their own laws
but also of Federal statutes pursuant to delegated authority.
The Pollution Prosecution Act of 1990 mandated that EPA
deploy 200 criminal investigators across the country and
establish the National Enforcement Training Institute (NETI)
to train State, local, and tribal law enforcement in safe and
effective investigation of environmental crimes. Section 5
will increase training for State, local, and tribal law
enforcement officials and strengthen cooperative enforcement
of the Nation's environmental laws. Under the mandate of the
Pollution Prosecution Act of 1990, the Environmental
Protection Agency has regularly trained State, local, and
tribal investigators and regulatory personnel in courses
conducted at the Federal Law Enforcement Training Center
(FLETC) in Glynco, GA. The need and demand for such training,
however, has been greatly increasing.
Section 6
Section 6 provides for an extension of the statute of
limitations where a violator has engaged in affirmative acts
of concealment of specified environmental crimes.
As is the case for most Federal crimes, Federal
environmental crimes are currently subject to a five-year
statute of limitations, which runs from the time the offense
is committed. 18 U.S.C. Sec. 3282. Some environmental crimes,
including some of the most egregious ones, involve
affirmative acts of concealment by the wrongdoers. Criminals
who are the most deceptive, and thus able to hide their
wrongdoing the longest, are most likely to escape the legal
consequences of their acts through expiration of the statute
of limitations.
Section 6 addresses this problem for a specified list of
felony violations of environmental statutes by extending the
limitations period for up to three years beyond the
traditional 5-year period when the defendant commits an
affirmative act of concealment. In these circumstances, the
limitation period extends to three years after discovery of
the crime by the government. In no event does the limitations
period extend beyond eight years after the offense was
committed. This extended limitations period covers violations
of various provisions under the Federal Water Pollution
Control Act; the Marine Protection, Research, and Sanctuaries
Act; the Act to Prevent Pollution from Ships; the Shore
Protection Act; the Safe Drinking Water Act; the Resource
Conservation and Recovery Act; the Clean Air Act; the
Comprehensive Environmental Response, Compensation, and
Liability Act; the Emergency Planning and Community Right-
to-Know Act; and 49 U.S.C. Sec. 5124.
For example, if a violator committed an affirmative act of
concealment and the environmental crime were not discovered
until three, four, or five years after it was committed,
Section 6 would extend the statute of limitations to 6, 7, or
8 years after the crime was committed, respectively--that is,
up to three years after the time of discovery with an eight
year cap. If a violator committed an affirmative act of
concealment, but the crime were nevertheless discovered by
any Federal, State, local, or tribal government agency
immediately after it was committed, there would be no
extension under Section 6, and the limitations period would
be the 5-year period running from the time the crime was
committed. Similarly, where there was no affirmative act of
concealment, the five-year period would apply and would run
from commission of the crime.
The burden rests on the government to prove an affirmative
act of concealment under Section 6.
Section 7
Section 7 amends specified environmental statutes to add
attempt provisions. Under these new provisions, any person
who attempts to commit an offense shall be subject to the
same penalties as those prescribed for the offense itself.
The rationale for these new attempt provisions is similar
to that for comparable provisions in other Federal criminal
statutes. Under these existing attempt laws, when law
enforcement authorities uncover planned criminal activity and
a substantial step is taken towards the commission of the
crime, the crime can be stopped before it is completed and
the perpetrator may still be prosecuted. For example, Federal
law makes attempted bank robbery a crime, punishable the same
as bank robbery. 18 U.S.C. Sec. 2113(a). Similar attempt
provisions exist for numerous other crimes, such as uttering
a Treasury check with forged endorsement (18 U.S.C.
Sec. 510); bank fraud (18 U.S.C. Sec. 1344); damage to
government property (18 U.S.C. Sec. 1361); obstruction of
court orders (18 U.S.C. Sec. 1509); and obtaining mail by
fraud or deception (18 U.S.C. Sec. 1708).
There has been only one attempt provision in Federal
environmental criminal enforcement statutes. As a result,
Federal agents can be placed in the untenable situation of
choosing between obtaining evidence necessary for a criminal
prosecution and preventing pollution from occurring. For
example, without an attempt statute, if agents stop a would-
be environmental criminal from dumping hazardous waste, the
perpetrator cannot be prosecuted for illegal dumping because
no environmental crime has occurred. Only if the agents allow
the dumping to occur, with the possibility of damage to the
environment and risk to the public health, could the
perpetrator be prosecuted for illegal dumping. These
attempt provisions allow law enforcement personnel to stop
environmental crimes before they are completed and still
bring the wrongdoer to justice.
Attempt statutes serve another very important purpose in
law enforcement, related to undercover investigations.
Attempt statutes allow prosecution where a defendant
purposely engages in conduct that would constitute the crime
if the circumstances were as the defendant believes them to
be. Undercover operations are widely recognized as a valuable
tool to ferret out serious crimes, and attempt provisions
will make undercover environmental investigations safer to
the public by allowing the government to substitute benign
substances for the dangerous substances that make the conduct
illegal, but still prosecute for attempt the person who
believes he is engaging in the illegal conduct.
The new language added by Section 7 is analogous to the
attempt provision contained in the Federal drug laws. 21
U.S.C. Sec. 846. An attempt to commit the conduct
constituting one of specified environmental criminal offenses
is punished in the same manner as the offense itself.
Section 8
Section 8 amends the Federal restitution statutes to
clarify the authority of the courts to provide for
restitution to victims in environmental crimes cases.
Existing restitution statutes provide for restitution for
bodily injury and property loss. Those categories of
restitution address the harm suffered by victims of violent
and economic crimes and are intended to make them whole for
their physical injuries and pecuniary damages. The victims of
environmental crimes also may suffer physical injuries and
pecuniary losses. Indeed, environmental crimes often are
economic crimes. At the same time, however, an environmental
crime also may cause more widespread and longstanding damage,
with the harm inflicted on all members of a community or
communities affected by the environmental pollution or
damage.
Section 8 clarifies the existing authority of the courts by
including environmental offenses among the crimes explicitly
enumerated in the restitution statutes. It makes plain that
the costs of removal and remediation of environmental
pollution or damage, and required restoration of the
environment, are included within the coverage of that
statute, to the extent of the pollution or damage resulting
from the offense. This section recognizes that environmental
crimes can harm entire communities and clarifies that the
definition of ``victim'' in the restitution statutes may
include all members of a community or communities, whether
or not they are individually identified.
Section 9
Section 9 authorizes the government, after notice to the
defendant, to seek an order from the court to prevent a
defendant charged with an environmental crime from dealing
with its assets in a manner that would impair its ability to
pay for the harm caused by its environmental violations. The
government bears the burden of establishing the costs
involved, and the defendant may
[[Page S11040]]
avert such an order by showing that it retains sufficient
assets to cover those costs or that it already has paid such
costs. The Federal Rules of Criminal Procedure govern any
proceedings under this section for an order to prevent the
disposal or alienation of assets. Such an order expires at
the point of sentencing, or of dismissal or acquittal of the
prosecution.
This section expressly codifies the authority already
available to a court under the All Writs Act, 28 U.S.C.
Sec. 1651. It will prevent a defendant, during the pendency
of criminal environmental charges, from concealing, disposing
of, or otherwise dealing with its assets in such a manner
that, if it is convicted and is ordered to pay the costs of
the harm caused by its actions, sufficient assets no longer
will be available for that purpose. If such authority were
not available, defendants could easily thwart the purposes of
the restitution provisions of this act and those found
elsewhere in the law. Similar authority, to prevent the
disposal of assets to pay for violations of law, can be found
at 18 U.S.C. Sec. 1345 (Injunctions against Fraud). At the
same time, the section allows a defendant that can show that
defendant's other assets will be sufficient to pay for such
harm, or that such costs already have been paid, to avoid
being burdened by such an order.
SEC. 9. PREVENTION OF ALIENATION OR DISPOSAL OF ASSETS NEEDED
TO REMEDY ENVIRONMENTAL HARMS CAUSED BY
ENVIRONMENTAL CRIMES.
(a) Chapter 39 of title 18, United States Code, is amended
by adding after section 838 the following new section--
``Sec. 839. Prejudgment orders to secure payment for
environmental damage
``(a) At the time of filing of an indictment or information
for the violation of any of the statutory provisions set
forth in section 838(a) of this chapter, or at any time
thereafter, if, after notice to the defendant, the United
States shows probable cause to believe that--
(1) the defendant will conceal, alienate or dispose of
property, or place property outside the jurisdiction of the
Federal district courts; and,
(2) the defendant will thereby reduce or impair the
defendant's ability to pay restitution, in whole or in part,
including removal and remediation of environmental pollution
or damage and restoration of the environment resulting from
the statutory violation,
the district court may order the defendant not to alienate or
dispose of any such property, or place such property outside
the jurisdiction of the Federal district courts, without
leave of the court. The United States shall bear the burden
of proving, by a preponderance of the evidence, the projected
cost for the removal and remediation of the environmental
pollution or damage and restoration of the environment.
``(b) Defenses--
The defendant may establish the following affirmative
defenses to a motion by the government under this section--
(1) that the defendant possesses other assets sufficient to
pay restitution, including the costs of removal and
remediation of the environmental pollution or damage and
restoration of the environment resulting from the statutory
violation, provided that the defendant places those other
assets under the control of the court, or
(2) that the defendant has made full restitution, including
the removal and remediation of the environmental pollution or
damage and restoration of the environment.
``(c) Procedures--
Any proceeding under this section is governed by the
Federal Rules of Criminal Procedure.
``(d) Property Defined--
For the purposes of this section, ``property'' shall
include--
(1) Real property, including things growing on, affixed to,
and found in land; and,
(2) Tangible and intangible personal property, including
money, rights, privileges, interests, claims, and securities.
``(e) Expiration of Order--
The court may amend an Order issued pursuant to this
section at any time. In no event, however, shall the Order
extend beyond sentencing, in the case of a conviction, or a
dismissal or acquittal of the prosecution.
``(f) All Writs Act--
Nothing in this section diminishes the powers of the court
otherwise available under section 1651 of title 28 United
States Code, the All Writs Act.''.
(b) The table of sections of chapter 39 of Title 18, United
States Code, is amended by adding after section 838, the
following new section--
``Sec. 839. Prejudgment orders to secure payment for
environmental damage.''.
Mr. KERRY. Mr. President, I am proud to introduce today with my good
friend Senator Lautenberg the Environmental Crimes and Enforcement Act
of 1996. The American people have every right to expect their
Government to protect their health and safety, and take swift action
against those who choose to do harm. Our bill would strengthen efforts
to ensure a safer, cleaner environment for the future and would enhance
the Federal-State-local government partnership in fighting
environmental crimes.
This administration has the strongest record in taking action against
intransigent polluters, and it has collected among the biggest fines
levied on those polluters in American history. However, for too long,
many industrial polluters have gone largely unchecked and have
consistently evaded responsibility for the severe damage they have done
to our environment.
I would like to review quickly some of the more important provisions
contained in our legislation.
One of the ground-breaking measures contained in this legislation is
the provision amending existing environmental statutes to define the
attempt to commit an offense as a crime, subject to the penalties of
the offense itself. This makes environmental law consistent with other
Federal criminal statutes. With only one exception, attempting to
commit an environmental crime is itself not a Federal crime. It is this
area of law enforcement that would greatly benefit from such
provisions, which would in turn have the effect of better protecting
the public's health and safety and our environment. Furthermore, this
provision closes the gap between prosecution and environmental
protection. In the past, law enforcement officials could not prosecute
violators of environmental law until the crime was committed, causing
damage to the environment and jeopardizing public health and safety.
Now, would-be wrong-doers can be stopped and prosecuted before they do
harm.
Let me provide you with a good example of how this would work, using
a hypothetical case of hazardous waste dumping. While haulers are
required by law to dispose of toxic materials in a permitted hazardous
waste disposal facility, often renegade transporters dump in vacant
lots, remote areas, and other unauthorized locales. Once they have
received information that illegal dumping is occurring, Federal agents
conduct surveillance of hazardous waste transporters. But, because
there is no attempt provision in statutes defining environmental
crimes, if agents prevent a transporter from dumping hazardous waste,
the perpetrator cannot be prosecuted for illegal dumping because no
environmental crime has occurred. Under current law, only by damaging
the environment by allowing the hazardous waste dumping to occur, can
the Government build a case to prosecute a person for illegal dumping.
This does not make sense and we must change these laws.
This provision adds a new dimension to the protection of the
environment: the capability of officials to engage in undercover
operations. These investigations will allow Federal officials to
conduct ``sting'' operations by substituting benign substances for the
actual pollutants, and prosecute, to the fullest extent of the law,
those violators who engaged in behavior they know to be illegal.
Another provision, and arguably the most important for cleaning up
the environment in a fiscally responsible way, is the authority granted
to Federal district courts to order convicted criminals to reimburse
States, localities, and tribes for costs they incur during Federal
environmental prosecutions. These recovered costs will be used
exclusively for funding the enhancement of environmental law
enforcement required in this bill.
Greater protection is also given to the first line of defense in many
environmental crime scenes: police, firefighters, and public health
personnel. This measure will strengthen the existing penalties for
violations of the Clean Water Act, the Clean Air Act, the Community
Right-to-Know Act, Superfund, the Marine Sanctuaries Act, and other key
environmental statutes.
Our legislation also addresses the increasing need for additional
training of law enforcement personnel. In response to the urgent
requests of State, local, and tribal authorities, the Environmental
Crimes and Enforcement Act would establish, under the Environmental
Protection Agency, a separate program for environmental crimes
investigations.
In addition, the act limits the effect of the affirmative acts of
concealment that violators commit to prevent prosecution during the
current statute of limitations for environmental crimes, which is 5
years. This bill extends the limitations period for up to 3 years
beyond the traditional 5 years for cases in which the defendant
deliberately conceals the original infraction.
[[Page S11041]]
This bill also adds environmental crimes to the list of statutes that
provide for restitution to victims, such as violent and economic crime.
The act recognizes that longstanding and widespread damage, in addition
to the physical injuries and financial losses, may be caused by an
environmental crime. The restitution provision includes the costs of
removal and remediation of pollution and the necessary restoration of
the environment.
Finally, the Environmental Crimes and Enforcement Act would authorize
prosecutors to seize the assets of environmental criminals before
conviction so that the defendant retains sufficient assets to make
reparations. This measure ensures that environmental criminals cannot
hide behind bankruptcy, or hide their assets so that the Government
bears the burden of the cost of repairs.
Let me conclude, Mr. President, by saying that although this
legislation is long overdue, the effects of it will be far-reaching.
This issue is not only about the environment, it is about fiscal
responsibility and taking responsibility for one's actions. This bill
does not propose newer, stricter regulations, it does not call for any
burdensome Federal mandates; it merely closes loopholes through which
polluters have slipped for many years. Furthermore, it reduces the
burden placed of Government to pay for environmental clean-ups and
places it firmly on the shoulders of the criminals, where it belongs.
Once again, I complement the leadership of the Senator from New Jersey.
It was a pleasure working together to develop this legislation, and I
look forward to working with him to pass it.
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