[Congressional Record Volume 142, Number 130 (Thursday, September 19, 1996)]
[Senate]
[Pages S11036-S11041]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      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.

                          ____________________