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[Congressional Record Volume 141, Number 78 (Thursday, May 11, 1995)]
[Senate]
[Pages S6477-S6485]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

         INTERSTATE TRANSPORTATION OF MUNICIPAL SOLID WASTE ACT

  The Senate continued with the consideration of the bill.
  Mr. CHAFEE. Mr. President, I ask unanimous consent that the pending 
amendment be set aside.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                           Amendment No. 758

  Mr. CHAFEE. Mr. President, on behalf of Senators Dodd and Lieberman, 
I send an amendment to the desk and ask for its immediate 
consideration.
  The PRESIDING OFFICER. The clerk will report.
  The bill clerk read as follows:

       The Senator from Rhode Island [Mr. Chafee], for Mr. Dodd, 
     for himself and Mr. Lieberman, proposes an amendment numbered 
     758.

  The amendment is as follows:

       On page 62, line 4, after the words ``public service 
     authority'', add ``or its operator''.

  Mr. CHAFEE. Mr. President, this is a technical amendment, obviously. 
It is needed to be consistent with the language on page 61, line 18 of 
the legislation.
  The PRESIDING OFFICER. Without objection, the amendment is agreed to.
  So the amendment (No. 758) was agreed to.
  Mr. BAUCUS addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Montana.
  Mr. BAUCUS. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. CHAFEE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Inhofe). Without objection, it is so 
ordered.
                              flow control

  Mr. DODD. Mr. President, I would like to engage in a colloquy with 
Senator Chafee, the chairman of the Environment and Public Works 
Committee and Senator Baucus, the committee's ranking member, regarding 
the intent of S. 534 with respect to flow control.
  Is it the intent of this bill to allow for the refinancing of public 
debt for waste management facilities where only the interest rate would 
change, and not the amount or maturity date of the bond?
  Mr. CHAFEE. Yes, that is the intent of the bill.
  Mr. DODD. Is this the understanding of the Senator from Montana?
  Mr. BAUCUS. Yes, that is my understanding as well.

                  flow control and free market issues

  Mr. SANTORUM. Mr. President, I seek recognition for the purpose of 
engaging in a colloquy with the distinguished Senator from New 
Hampshire, Senator Smith, the manager of S. 534.
  First, may I congratulate my colleague on his skillful handling of 
this difficult legislation.
  Second, it is that very difficulty on which I would like to focus in 
this colloquy.
  I think my colleague would agree with me in my characterization of 
this legislation as statutory interference with the commerce clause of 
the Constitution of the United States. This interference comes as a 
result of the Carbone versus Clarkstown decision, which has caused 
problems with certain public facilities financed by revenue bonds. 
Carbone invalidated State and local laws which create a solid waste 
monopoly for those facilities. And, of course, there is the continued 
desire to come to grips with the problem of interstate transfer of 
solid waste. I am especially aware of this problem because my own State 
of Pennsylvania has been the unwilling recipient of solid waste 
exported from New Jersey and New York, in particular.
  Thus, we have a clash between the fundamental wisdom of the commerce 
clause and the practical effects of the interstate trade in solid 
waste. May I ask my colleague from New Hampshire the following 
question?
  Is it fair to state that he has attempted to craft legislation which 
would interfere as little as possible with the commerce clause and 
thereby he would try to protect the free market where it has worked?
  Mr. SMITH. I have stated before that I am not in favor of flow 
control. Flow control is anticompetitive. But it is only fair and 
equitable that communities that have indebted themselves--completely 
within the law prior to the Supreme Court decision--must not be left to 
suffer the consequences of financial failure. The outstanding municipal 
bonds that total more than $20 billion must be honored and the 
communities' financial stability must be maintained. However, only 
those facilities with bonded revenues are given grandfather coverage 
under this bill. Any municipality indebted after the Carbone decision 
is not and will not be protected.
  The free market must prevail. Rather than assisting with the creation 
of yet another bloated Government bureaucracy, we should be encouraging 
the establishment of a healthy free market, one in which competition 
keeps prices low, offers consumers better services, and disposal 
techniques are state-of-the-art.
  Mr. SANTORUM. Further, it appears to me that the interstate title of 
this legislation gives my Commonwealth of Pennsylvania the tools it 
needs to prevent abuse of our resources and environment. Could my 
colleague comment on that?
  Mr. SMITH. Yes, the interstate title gives the Governor of 
Pennsylvania and the Governors of other affected States authority to 
ensure that their States do not continue as unabated dumping grounds 
for States which do not act to site their own disposal capacity.
  Mr. SANTORUM. Last, with regard to title II, flow control, may I 
inquire of my colleague whether this legislation imposes flow control 
or in any way makes it mandatory and thereby suppresses the free 
market?
  Mr. SMITH. This legislation does not impose flow control. Flow 
control is fundamentally incompatible with the principles of free 
enterprise, market competition, and the best interest of the consumer. 
Requiring the use of flow control would be a step backward in the 
handling of municipal solid waste. This bill is designed specifically 
to protect the bond holders and commitments previously made. The free 
market is not broken, and with the inclusion of a 30-year sunset 
provision, the free market will once again take over.
  Mr. SANTORUM. Based on the response of my colleague, may I validly 
draw the following two conclusions?
  First, this legislation allows the continuation of flow control as 
previously enacted under State law under certain conditions but not 
require or mandate flow control.
  Second, it is the intention of the distinguished subcommittee 
chairman that this legislation not be used in and of itself as an 
argument to suppress the free market.
  Mr. SMITH. My colleague from Pennsylvania is correct in his 
conclusions regarding the spirit of the legislation. Flow control will 
continue under certain conditions but is not required or mandated. As I 
have said before, the free market must be allowed to prevail.
  Mr. SANTORUM. I thank my distinguished colleague and again commend 
him for so ably discharging this difficult responsibility.
  Mr. DASCHLE. Mr. President, I am fortunate to come from a State with 
[[Page S6478]] sparsely populated expanses of some of the most 
beautiful land in this country. States like South Dakota have a special 
interest in the legislation before the Senate today, as it will 
directly affect their future.
  The legislation, S. 534, amends the Solid Waste Disposal Act to 
provide important authority for States and local governments to better 
control the transportation of municipal solid waste between and within 
States.
  The time has come to enact this legislation. States and local 
government are facing increasing challenges in the responsible 
regulation of municipal waste management. Interstate shipments of waste 
have been growing in recent years. Between 1990 and 1992, interstate 
shipments of waste grew by 4 million tons--a 25% increase. Currently, 
about 15 million tons of municipal waste is transported between States 
for treatment and disposal, much of it from densely populated regions 
to less populated areas.
  Moreover, the U.S. Supreme Court has ruled that unless Congress acts 
on this issue, States and local governments can have no meaningful role 
in controlling the movement of waste into and within their borders.
  The combination of increasing interstate shipments of municipal waste 
and recent Supreme Court decisions understandably has created concern 
among States like South Dakota, who fear that without authority to 
restrict unwanted imports of municipal waste, they will become the 
dumping ground for other, more heavily populated areas.
  In addition, Congress has a responsibility to help protect the 
investments made by towns across America in municipal waste management 
facilities--investments that have been placed in jeopardy by the 
Supreme Court's recent Carbone decision.
  The temptation can be great to ship waste to the more remote regions 
of our country. But some of these lands are fragile and are home to 
some of our country's greatest natural assets. In South Dakota alone, 
the geological wonderland of the Badlands, the expansive prairie, and 
the majestic Black Hills are examples of areas that deserve protection 
from the designs of anyone who would use them for waste disposal.
  The responsibility for disposing trash produced by large urban areas 
should be confronted and met by the citizens and community leaders who 
live there. Rural States should never be considered as a waste 
management option, unless they willingly choose to make their land 
available for that purpose. In the end, the choice must belong to the 
State and local governments that would bear the long-term environmental 
consequences of waste disposal.
  This bill addresses the rights and responsibilities of States and 
local governments to achieve their own environmental and economic 
objectives. It is about State and local self-determination. The 
interstate waste provisions of this bill represent a delicate balance 
between States that import and export waste. It is a step in the right 
direction because it encourages States to take responsibility for 
managing the waste they generate, rather than sending it elsewhere. Out 
of sight and out of mind will not work when it comes to management of 
municipal solid waste, particularly if it means leaving it within the 
sight and on the minds of those who do not want it.
  Reduce, reuse, and recycle is a better solution. It represents a 
philosophy that more States will have to adopt as a result of this 
bill.
  Like most legislation, this bill will not completely satisfy the 
objectives of every State or local government. Some States, like South 
Dakota, would like, and I believe deserve, even greater authority to 
prevent imports of waste. Other States, which with an interest in 
exporting municipal waste, would prefer to see fewer restrictions. 
Likewise, I am aware that while there are cities and towns that would 
prefer to have greater and more enduring authority to regulate flow 
control, there are Members of this body who feel that the free and 
unfettered competition of the marketplace should be given a greater 
opportunity to determine the flow of municipal waste.
  This bill strikes a reasonable balance between these competing 
interests, one that I believe is essential if we are to move forward 
and enact meaningful legislation. It gives States and local governments 
the ability to promote their own environmental goals and meet important 
financial obligations. We must pilot a course of responsible 
stewardship of our resources. This bill gives States and cities the 
power to do just that, and I hope that my colleagues will join me in 
supporting this important and timely legislation.
  Mr. CHAFEE. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. BINGAMAN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                     Privilege of the Floor--S. 534

  Mr. BINGAMAN. Mr. President, I ask unanimous consent that Anna 
Garcia, a fellow in my office, be allowed floor privileges during 
consideration of this legislation.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                           Amendment No. 761

(Purpose: To require the Administrator of the Environmental Protection 
 Agency to conduct a study of solid waste management issues associated 
  with increased border use resulting from the implementation of the 
                  North American Free Trade Agreement)

  Mr. BINGAMAN. Mr. President, I send an amendment to the desk for 
immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The bill clerk read as follows:

       The Senator from New Mexico [Mr. Bingaman] proposes an 
     amendment numbered 761.

  Mr. BINGAMAN. Mr. President, I ask unanimous consent further reading 
be dispensed.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       At the appropriate place insert the following:

     SEC. ____. BORDER STUDIES.

     (a) Definitions.--In this section:
       (1) Administrator.--The term ``Administrator'' means the 
     Administrator of the Environmental Protection Agency.
       (2) Maquiladora.--The term ``maquiladora'' means 
     an industry located in Mexico along the border between the 
     United States and Mexico.
       (3) Solid waste.--The term ``solid waste'' has the meaning 
     provided the term under section 1004(27) of the Solid Waste 
     Disposal Act (42 U.S.C. 6903(27)).
       (b) In General.--
       (1) Study of solid waste management issues associated with 
     north american free trade agreement.--As soon as practicable 
     after the date of enactment of this Act, the Administrator is 
     authorized to conduct a study of solid waste management 
     issues associated with increased border use resulting from 
     the implementation of the North American Free Trade 
     Agreement.
       (2) Study of solid waste management issues associated with 
     united states-canada free-trade agreement.--As soon as 
     practicable after the date of enactment of this Act, the 
     Administrator may conduct a similar study focused on border 
     traffic of solid waste resulting from the implementation of 
     the United States-Canada Free-Trade Agreement, with respect 
     to the border region between the United States and Canada.
       (c) Contents of Study.--A study conducted under this 
     section shall provide for the following:
       (1) A study of planning for solid waste treatment, storage, 
     and disposal capacity (including additional landfill 
     capacity) that would be necessary to accommodate the 
     generation of additional household, commercial, and 
     industrial wastes by an increased population along the border 
     involved.
       (2) A study of the relative impact on border communities of 
     a regional siting of solid waste storage and disposal 
     facilities.
       (3) In the case of the study described in subsection 
     (b)(1), research concerning methods of tracking of the 
     transportation of--
       (A) materials from the United States to maquiladoras; and
       (B) waste from maquiladoras to a final destination.
       (4) In the case of the study described in subsection 
     (b)(1), a determination of the need for solid waste materials 
     safety training for workers in Mexico and the United States 
     within the 100-mile zone specified in the First Stage 
     Implementation Plan Report for 1992-1994 of the Integrated 
     Environmental 
     [[Page S6479]] Plan for the Mexico-United States Border, 
     issued by the Administrator in February 1992.
       (5) A review of the adequacy of existing emergency response 
     networks in the border region involved, including the 
     adequacy of training, equipment, and personnel.
       (6) An analysis of solid waste management practices in the 
     border region involved, including an examination of methods 
     for promoting source reduction, recycling, and other 
     alternatives to landfills.
       (d) Sources of Information.--In conducting a study under 
     this section, the Administrator shall, to the extent 
     allowable by law, solicit, collect, and use the following 
     information:
       (1) A demographic profile of border lands based on census 
     data prepared by the Bureau of the Census of the Department 
     of Commerce and, in the case of the study described in 
     subsection (b)(1), census data prepared by the Government of 
     Mexico.
       (2) In the case of the study described in subsection 
     (b)(1), information from the United States Customs Service of 
     the Department of the Treasury concerning solid waste 
     transported across the border between the United States and 
     Mexico, and the method of transportation of the waste.
       (3) In the case of the study described in subsection 
     (b)(1), information concerning the type and volume of 
     materials used in maquiladoras.
       (4)(A) Immigration data prepared by the Immigration and 
     Naturalization Service of the Department of Justice.
       (B) In the case of the study described in subsection 
     (b)(1), immigration data prepared by the Government of 
     Mexico.
       (5) Information relating to the infrastructure of border 
     land, including an accounting of the number of landfills, 
     wastewater treatment systems, and solid waste treatment, 
     storage, and disposal facilities.
       (6) A listing of each site in the border region involved 
     where solid waste is treated, stored, or disposed of.
       (7) In the case of the study described in subsection 
     (b)(1), a profile of the industries in the region of the 
     border between the United States and Mexico.
       (e) Consultation and Cooperation.--In carrying out this 
     section, the Administrator shall consult with the following 
     entities in reviewing study activities:
       (1) With respect to reviewing the study described in 
     subsection (b)(1), States and political subdivisions of 
     States (including municipalities and counties) in the region 
     of the border between the United States and Mexico.
       (2) The heads of other Federal agencies (including the 
     Secretary of the Interior, the Secretary of Housing, the 
     Secretary of Health and Human Services, the Secretary of 
     Transportation, and the Secretary of Commerce) and with 
     respect to reviewing the study described in subsection 
     (b)(1), equivalent officials of the Government of Mexico.
       (f) Reports to Congress.--On completion of the studies 
     under this section, the Administrator shall, not later than 2 
     years after the date of enactment of this Act, submit to the 
     appropriate committees of Congress reports that summarize the 
     findings of the studies and propose methods by which solid 
     waste border traffic may be tracked, from source to 
     destination, on an annual basis.
       (g) Border Study Delay.--The conduct of the study described 
     in subsection (b)(2) shall not delay or otherwise affect 
     completion of the study described in subsection (b)(1).
       (h) Funding.--If any funding needed to conduct the studies 
     required by this section is not otherwise available, the 
     President may transfer to the Administrator, for use in 
     conducting the studies, any funds that have been appropriated 
     to the President under section 533 of the North American Free 
     Trade Agreement Implementation Act (19 U.S.C. 3473) that are 
     in excess of the amount needed to carry out that section. 
     States that wish to participate in study will be asked to 
     contribute to the costs of the study. The terms of the cost 
     share shall be negotiated between the Environmental 
     Protection Agency and the State.''.
  Mr. BINGAMAN. Mr. President, this amendment addresses a problem of 
increasing urgency in my part of the country, my home State of New 
Mexico. That is, the disposition of solid waste, along the United 
States-Mexico border.
  As the United States and Mexico move further into their trade 
relationship under the North American Free-Trade Agreement, increased 
development along the border is inevitable. With that development comes 
new challenges regarding the transport and disposal of solid waste.
  This is not just an issue for the Governments of the United States 
and Mexico, it is also an issue for the four border States of 
California, Arizona, New Mexico, and Texas. It is one that we need to 
deal with in this legislation, and capitalize on the opportunity 
offered by NAFTA. We are going to have to plan for this increased 
development. This means conducting necessary research on the scope of 
the problem.
  The amendment authorizes the Administrator of EPA to conduct a study 
of solid waste management issues associated with this increased use of 
the area along the border, in order that States and localities can 
properly plan for waste treatment, transportation, storage and 
disposal.
  The study will address six key issues. First, planning for additional 
landfill capacity; second, related impact on border communities of a 
regional siting of solid waste storage and disposal facilities; third, 
research on methods of tracking the transportation of materials to and 
from industries located along the border; fourth, the need for 
materials safety training for workers; fifth, the adequacy of existing 
emergency response networks in the border region; sixth, a review of 
solid waste management practices in the entire border region.
  It is my expectation that the Administrator, in order to fulfill the 
requirements of the amendment, would enter into contractual agreements 
with other entities such as States and universities and university 
consortia.
  Mr. President, I am convinced in the long run NAFTA will prove to be 
a good movement, a good initiative for economic opportunities for my 
home State of New Mexico and for the entire border region.
  This is only true if we manage these opportunities correctly and deal 
with the potential health and environment problems that the increased 
development will bring. This amendment helps to do that.
  I urge my colleagues to support the amendment. I understand the 
amendment has been reviewed by both the manager and the ranking member, 
and that this amendment is accepted.
  Mr. CHAFEE. Mr. President, this is a good amendment, and I 
congratulate the Senator from New Mexico. It is acceptable to this 
side.
  Mr. BAUCUS. Mr. President, I agree. The Senator from New Mexico has 
consulted with Senators, and I appreciate the approach he is taking. 
There is a problem with respect to what he raises.
  I urge adoption of the amendment.
  The PRESIDING OFFICER. The question is agreeing to the amendment.
  So the amendment (No. 761) was agreed to.
  Mr. BINGAMAN. I move to reconsider the vote.
  Mr. BAUCUS. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.

                     Privilege of the Floor--S. 534

  Mr. BAUCUS. Mr. President, I ask unanimous consent that Ken Berg, a 
fellow from the office of Senator Boxer, have the privileges of the 
floor during consideration of S. 534, and that Linda Critchfield, a 
fellow from the office of Senator Lieberman, be allowed on the floor 
during consideration of S. 534.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BAUCUS. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. KYL. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                           Amendment No. 769

  Mr. KYL. Mr. President, I ask unanimous consent to lay aside the 
pending amendment for the purpose of offering an amendment which is at 
the desk.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Arizona [Mr. KYL] proposes an amendment 
     numbered 769.

  Mr. KYL. Mr. President, I ask unanimous consent that reading of the 
amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       On page 57, strike line 16 and all that follows through 
     page 58, line 22, and insert the following:
       ``(4) Continued effectiveness of authority during 
     amortization of financing.--
       ``(A) In general.--With respect to each designated waste 
     management facility or facilities, or Public Service 
     Authority, authority may be exercised under this section 
     only--
       ``(i) until the date on which payments under the schedule 
     for payment of the capital costs of the facility concerned, 
     as in effect on May 15, 1994, are completed; and
       ``(ii) so long as all revenues (except for revenues used 
     for operation and maintenance of 
     [[Page S6480]] the designated waste management facility or 
     facilities, or Public Service Authority) derived from tipping 
     fees and other fees charged for the disposal of waste at the 
     facility concerned are used to make such payments.
       ``(B) Refinancing.--Subparagraph (A) shall not be construed 
     to preclude refinancing of the capital costs of a facility, 
     but if, under the terms of a refinancing, completion of the 
     schedule for payment of capital costs will occur after the 
     date on which completion would have occurred in accordance 
     with the schedule for payment in effect on May 15, 1994, the 
     authority under this section shall expire on the earlier of--
       ``(i) the date specified in subparagraph (A)(i); or
       ``(ii) the date on which payments under the schedule for 
     payment, as in effect after the refinancing, are completed.
       ``(C) Any political subdivision of a State exercising flow 
     control authority pursuant to subsection (c) may exercise 
     such authority under this section only until completion of 
     the original schedule for payment of the capital costs of the 
     facility for which permits and contracts were in effect, 
     obtained or submitted prior to May 15, 1994.''.

  Mr. KYL. Mr. President, the amendment which I offer now will tighten 
the flow control provisions of title II to more accurately reflect what 
I believe is the committee's intent; namely, to authorize flow control 
for a limited period of time to ensure that States and political 
subdivisions are able to service the debt that they incurred for the 
construction of solid waste management facilities prior to the Carbone 
decision.
  Flow control is inherently anticompetitive. It was ruled a violation 
of the Constitution's commerce clause by the U.S. Supreme Court in the 
Carbone case. The Court ruled:

       State and local governments may not use their regulatory 
     power to favor local enterprise by prohibiting patronage of 
     out-of-State competitors of their facilities.

  While Justice O'Connor in a concurring opinion noted Congress' power 
to authorize local imposition of flow control, I do not believe it is 
in the public interest to sanction these Government monopolies 
intrastate, and it could impede competition, particularly for any more 
than the minimum amount of time required for State and local 
governments to pay off the debt that they incurred prior to the Supreme 
Court decision.
  So my amendment would authorize flow control authority only until the 
debt incurred prior to the Carbone decision is repaid. During the 
period for which flow control is authorized, revenues derived from 
tipping fees and other fees charged at the flow control designated 
facility--these are net of revenues used for operation and maintenance 
of the facility, of course--must be used to pay off the debt 
obligations.
  This amendment would permit the refinancing of debt to allow State 
and local governments to take advantage of lower interest rates when 
they are available. However, flow control authority would end on the 
date on which the original debt would have been repaid or the date on 
which the refinanced debt is repaid, whichever is earlier.
  Mr. President, it appears to me that flow control has only one 
purpose; and, that is, to protect State or local monopolies that have 
developed in the disposal of municipal solid waste. That only hurts 
taxpayers, and there is no good reason for it.
  Flow control does not offer the benefit of added protection for human 
health and the environment either. According to a March 1995 report by 
the Environmental Protection Agency:

       Protection of human health and the environment is directly 
     related to the implementation and enforcement of federal, 
     State, and local environmental regulations. Regardless of 
     whether State or local governments administer flow control 
     programs, States are required to implement and enforce 
     federally approved regulations that fully protect human 
     health and the environment. Accordingly, there are no 
     empirical data showing that flow control provides more or 
     less protection.

  That is the end of quoting from the EPA report. In other words, 
disposal facilities, whether public or private, must meet the same 
standards of environmental protection. Flow control does not add to the 
environmental protection.
  Flow controls do result in substantially increased costs to 
communities across the country. That can have negative impacts on the 
environment due to the extent that it creates incentives for illegal 
dumping. In fact, in a column that appeared in the Washington Times on 
March 23 of this year, the mayor of Jersey City, Bret Schundler, noted;

       All of the illegal dumping that New Jersey is now suffering 
     from because of the soaring costs of waste disposal.

  In New Jersey, where flow control is in place, the price of disposal 
is approaching $100 per ton. That compares to an average of about $35 
per ton in areas without flow control.
  Although flow controls do not typically add as much as that to the 
cost of disposal in other parts of the country, the increased costs can 
still be substantial. A study just released by National Economic 
Research Associates found that flow controls increase disposal costs on 
average $14 a ton, or 40 percent. That is 40 percent, Mr. President, 
that flow controls add to the cost of disposal. That is an additional 
cost that individuals and businesses must ultimately bear.
  For example, again, Mayor Schundler notes that flow control prevents 
his community from reducing property taxes or taking advantage of lower 
cost alternatives.
  That is wrong and it is unnecessary.
  Some might say that flow control is needed to ensure sufficient waste 
management capacity or to help State and local governments achieve 
goals for source reduction, reuse and recycling. Again EPA's answer is 
no. In its March report, EPA stated, and I am quoting:

       There are no data showing that flow controls are essential 
     either for the development of new solid waste capacity or the 
     long-term achievement of State and local goals for source 
     reduction, reuse and recycling.

  What about the necessity of flow control to finance new landfills or 
landfill expansions? Again EPA's answer is no. Again quoting:

       Flow controls do not appear to have played a significant 
     role in financing new landfills.
  In fact, Mr. President, EPA goes on to note that private landfill 
firms have demonstrated their ability to raise substantial capital from 
publicly issued equity offerings, indicating that investors are willing 
to provide capital for the expansion of landfills without flow control 
guarantees. In other words, the private sector is willing and able to 
accommodate the demand for landfill capacity.
  In some instances, flow control laws have not merely been used to 
generate revenues to finance construction and O&M costs but also for 
the purpose of funding other activities, like recycling, composting, 
and hazardous waste collection, to name a few. That would be fine if 
State and local governments were not using the force of law to compel 
the use of specified facilities at specified rates, if they competed in 
the free market. But they are using statutory authority to compel 
certain sites. Users are therefore required, by law, to subsidize other 
activities.
  To the extent that we are considering limited flow control relief to 
help protect State and local investments, the revenues derived should 
be used solely for that purpose and not other things. My amendment will 
limit the use of revenues to that purpose.
  Mr. President, our goal here should not be to preserve 
anticompetitive practices but to establish a framework for orderly 
transition, to allow limited relief for State and local governments 
that had in good faith made commitments based on the law as they 
understood it prior to the Carbone decision.
  I hope my colleagues will join me in supporting this amendment and 
resist efforts to carve out exceptions to protect or extend local 
monopoly power. And, Mr. President, for the benefit of my colleagues, I 
ask that the full text of Mayor Schundler's column be printed in the 
Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

            [From the Washington (DC) Times, Mar. 23, 1995]

                The Smelly Truth About Garbage Disposal

                          (By Bret Schundler)

       Last May, in a case called Carbone vs. Town of Clarkstown 
     the United States Supreme Court held that state-imposed 
     waste-flow regulations violate the commerce clause of the 
     Constitution.
       This was an important and proper decision.
       But today, the Republican-controlled House Commerce 
     Committee will hold hearings on anti-free-market legislation 
     that would re-establish the authority of states to set up 
     government monopolies in garbage disposal. The flow-control 
     legislation that 
     [[Page S6481]] will be considered is bad public policy, and 
     it should be rejected.
       To understand how this issue affects you, let's look at the 
     experience of New Jersey.
       Prior to the Carbone decision, New Jersey used the guise of 
     solid-waste-flow regulation to establish county government 
     monopolies called ``improvement authorities'' that are given 
     the power to dictate to mayors where--and at what price--they 
     must dispose of their municipal garbage. Experience teaches 
     us that anytime a public or private monopoly controls the 
     quantity and price of a service, that monopoly will have no 
     incentive to control costs or improve services. And this is 
     precisely what has occurred in New Jersey.
       Let's look at the issue of cost. The average price for the 
     disposal of solid waste in America is only $35 per ton. But 
     in New Jersey, thanks to the establishment of governmental 
     disposal monopolies, the price is fast approaching $100 per 
     ton.
       Now let's look at the quality of services delivered. The 
     defenders of the status quo argue that allowing private 
     disposal sites to compete on the basis of cost is 
     environmentally unsound. But, in fact, it is easy to regulate 
     private disposal sites to ensure that proper environmental 
     standards are maintained. What is not easy to regulate is all 
     of the illegal dumping that New Jersey is now suffering from 
     because of the soaring costs of waste disposal.
       Apologists for the former Soviet Union used to contend that 
     government-run industries are more environmentally sensitive 
     than industries under private control. But we now know that 
     the reverse is true. Government-controlled industry tends to 
     be less responsible than private industry, because when 
     industry and regulator are one in the same, the inherent 
     conflict of interest is invariably resolved in favor of lax 
     enforcement of environmental safeguards.
       Instead of building and protecting government monopolies, 
     we should be encouraging the creation of a healthy free 
     market of properly regulated private disposal firms. These 
     firms should compete not only on the basis of price, but also 
     in terms on the basis of price, but also in terms of 
     environmentally sound disposal techniques. Protected 
     government monopolies, in contrast, will never have any 
     incentive to innovate.
       The New Jersey Environmental Federation, representing all 
     of the state's lending environmental organizations, has 
     joined me and other New Jersey mayors in opposing waste-flow-
     control legislation. According to the Federation, New 
     Jersey's governmental monopoly in waste disposal stifles 
     ``technical innovation, private investment, and market 
     development for lower cost, environmentally preferable 
     material recovery and composting technologies.'' The 
     Federation is right on target.
       New Jersey Gov. Christine Todd, Whitman supports the 
     maintenance of country waste disposal monopolies. This is 
     because the governor believes that a competitive market would 
     cause financial chaos. She worries that without having a 
     guaranteed source of revenue, county improvement authorities, 
     which have borrowed large sums of money to build 
     incinerators, could possibly default on their bonds. But 
     there is a solution to this problem that is much preferable 
     to the current flawed policy.
       Stated simply. New Jersey could issue bonds to pay off the 
     existing debt that county governments have incurred to build 
     government disposal facilities. Next the state could 
     establish a $10-per-ton surcharge on solid waste disposal 
     fees, which could be used to fully amortize the new bonds in 
     just 10 years. County disposal facilities, freed of debt 
     service costs, could immediately drop their rates by a like 
     $10-per-ton--or more. Municipalities, able to find less 
     expensive disposal alternatives, could take advantage of the 
     opportunity, and thereby provide their residents with much-
     needed property-tax relief.
       In many New Jersey counties, the property-tax relief that 
     could be realized is substantial. In some counties, market 
     prices for disposal are than $50-per-ton less than the 
     governmental monopoly price. After the $10-per-ton surcharge 
     that would have to be paid to the state, local taxpayers 
     could still save $40-per-ton of waste generated.
       The current system makes no sense. In Jersey City, because 
     of government monopoly pricing we pay almost 50 percent more 
     to dispose of our solid waste than does neighboring New York 
     City, which pays free-market rates to dump at a disposal 
     facility located just outside Newark, NJ. This is ridiculous!
       As a mayor, I'm the one who must collect from property 
     owners the taxes they pay for garbage disposal. But New 
     Jersey's waste-flow-control regulations prevent me from 
     taking advantage of lower priced, more environmentally sound 
     disposal alternatives.
       The effect of these flow-control regulations is to prohibit 
     me from reducing property taxes for my residents. And when I 
     have to raise property taxes to pay for skyrocketing disposal 
     costs, residents do not get angry with the state. Neither do 
     they direct their ire at the executive director of the county 
     improvement authority for running a costly, inefficient 
     government bureaucracy, bursting at the seams with 
     unnecessary patronage workers. Instead, property owners get 
     mad at me, because I am the one who must send out the bills 
     to pay for all of this foolishness.
       I know very well why some county governments in New Jersey 
     support flow-control legislation. It's nice to have a 
     relatively anonymous place where you can place patronage 
     hires and generate huge contracts for law firms and 
     consultants, who subsequently get tapped for political 
     campaign contributions. This arrangement is especially nice, 
     in the view of some county officials, since it is the mayors, 
     and not county executives, who will get the blame for soaring 
     property taxes.
       But we should realize by now that government never works 
     well when power is insulated from accountability. Good 
     government requires that power be kept as close to the people 
     as possible. Good government also requires that a clear 
     demarcation of responsibility exist between different levels 
     of government, so that the people know whom to throw out of 
     office for unnecessarily inflating service costs or degrading 
     the environment. Flow control legislation flies in the face 
     of these principles. It is not good government.
       America was built on the principles of the free market, 
     where there are natural incentives for the providers of goods 
     and services to be efficient and to keep prices down. There 
     isn't any legitimate reason not to allow these same market 
     forces to ensure that municipalities have the freedom to 
     dispose of garbage by taking advantage of the least 
     expensive, most environmentally sound alternatives.
       With Congress now looking at school choice and other forms 
     of empowerment as the way to reform our education system and 
     enhance the provision of essential government services, it 
     would be a travesty to allow states to move away from free-
     market solutions in the area of garbage disposal.

  Mr. KYL. Mr. President, let me conclude by summarizing in this 
fashion.
  What we are dealing with here is municipalities coming to Congress 
and asking for relief from a Supreme Court decision which said that 
what certain States had done in the past, limiting the free flow of 
interstate commerce, in this case in treating garbage, solid waste, was 
an unconstitutional infringement on the commerce clause, and so unless 
the Congress acts, these arrangements that have been entered into by 
the States will not be able to proceed in a monopoly fashion. They will 
have to compete with the private market. As the EPA report notes, the 
private market is quite capable of working in this area.
  And so some municipalities have said, well, since we made our 
decision on good faith, based upon the law as we knew it, we should at 
least be protected to the extent that it takes us to pay off the 
investment, to pay off the bonds, and my amendment would grant that 
grandfathering authority. We would say to these municipalities, 
whatever the length of your bond period is to pay off those bonds, we 
will grant you the authority to create a monopoly so you have no 
competition, if that is what you want, and you can pay off those bonds. 
But you should not be entitled to have a monopoly beyond that point.
  What this amendment boils down to, Mr. President, is which side you 
are on. Are you for saying that for the period of time that it takes a 
municipality to pay off the bonds we should grant this grandfathering 
exception, or should we grant even further extensions, and here are the 
two that are most frequently cited.
  In some cases it is said that a municipality has a contract to accept 
waste and dispose of it lasting longer than the period of the bond 
repayment. So let us hypothetically assume you have a 20-year bond and 
a 30-year contract. They would argue that the length of time for the 
monopoly protection should be 30 years, not 20 years. There is 
absolutely no logic to that whatsoever.
  Once the 20 years has elapsed, the bonds have been paid, the facility 
now exists debt free, it ought to be able to compete, for the last 10 
years of its contract, with anybody in the private market who comes 
along with the necessity of raising the capital to construct a facility 
to compete with that municipal facility and then to treat this garbage 
at a lesser rate.
  In any event, the city has the contract for the remaining 10 years, 
and the other contracting party is required to comply with the terms of 
the contract. So there are two reasons why there is no reason to extend 
the grandfathering protection, monopoly protection, of this legislation 
beyond the term that it takes to repay the debt.
  No. 1, the party providing the garbage has to fulfill its end of the 
contract regardless of what we do, so the municipality is protected in 
that regard. And No. 2, the municipality has a free facility, in 
effect, a facility that is 
[[Page S6482]] now totally paid up. If it cannot compete with the 
private market under those circumstances, then there is something 
drastically wrong and the Congress should not be creating a monopoly to 
permit that to occur.
  As I noted, EPA has noted there is neither a problem with 
environmental laws nor a problem with generating fees for other 
purposes here.
  So that is the first argument that is raised, that we should extend 
it to the contract period. The other is more amorphous, and that is 
that we should extend this to the useful life of the plant. That is in 
effect selling the entire concept of the free market down the drain. We 
may as well say let us have socialized garbage. If we are saying that 
the municipality can have the monopoly protection for the entire life 
of the plant, then we are providing no opportunity for competition 
whatsoever.
  Is it not enough that we allow them the monopoly protection until 
they have repaid all of their debts? Is it not enough that a 
contracting party would still have to abide by the terms of the 
contract and sell its garbage to the city under the terms of that 
contract? Are we now being asked to also extend this monopoly power to 
the useful life of the plant, whatever they may define that to be? It 
is a very unclear definition as to what that is. And there are not very 
many plants that are that well planned whose life can be extended 
without modernizing the plant. So we want municipalities to do this. 
That is fine. So municipalities are asking for virtually unlimited 
power.
  With that in mind, the committee has wisely said ``enough.'' At 30 
years, enough is enough. We will not extend this protection beyond 30 
years. That was a wise thing for the committee to do. But I submit the 
committee should not have gone that far; that it ought to be sufficient 
that the municipality is granted the monopoly protection until all of 
its obligations for repayment of the bonds have been satisfied. At that 
point, it ought to have to compete along with anybody else. And for us 
to grant an exemption beyond that is to do something which the U.S. 
Supreme Court has said is violative of the commerce clause of the 
Constitution. And our oath requires us not to do that.
  That is why, despite the fact that I have no interest in this--my 
State is not involved. I have no municipality or county government in 
the State of Arizona contacting me on this because we are not a State 
that does this. So I have no personal interest in this, or political 
interest. But it does seem to me that as Senators we have an obligation 
to do what is right as a country. The legislation which the committee 
has crafted has very carefully taken care of very severe problems in 
very specific situations.
  Those States--and I would mention one, New Jersey--have been 
accommodated under the committee legislation. It is not necessary to 
broaden this exemption any beyond what my amendment would provide for.
  So, Mr. President, I would be happy to engage in a colloquy with 
anyone who would like to inquire further as to the effect or intent of 
my amendment. I intend eventually to call for a vote. I will be very 
happy to debate this under a time agreement, starting with whenever 
anyone would wish to enter into such an agreement.
  But I certainly hope that my colleagues will realize that the 
municipalities that need this relief are not in a position to hold 
leverage over our head. The U.S. Senate does not have to succumb to 
what municipalities would desire or like to have in this regard, but 
only that which they need. And that is all that we ought to be granting 
them if we are talking about monopoly power in an area where the free 
market should work just fine, again, according to the Environmental 
Protection Agency.
  I yield the floor at this point. If no one wishes to examine my views 
on this at this point, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CHAFEE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CHAFEE. Mr. President, is there a pending amendment and, if so, I 
ask unanimous consent that it be set aside.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                      Unanimous-Consent Agreement

  Mr. CHAFEE. Mr. President, I ask unanimous consent that a tabling 
vote occur in relation to the pending Kyl amendment at 2:30 p.m. today 
and that no second-degree amendments be in order to the Kyl amendment 
prior to the tabling vote.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CHAFEE. Mr. President, that vote will occur at 2:30 p.m. on the 
tabling motion unless it is vitiated. As it is now, it appears we will 
be having that tabling vote at 2:30.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CHAFEE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Kyl). Without objection, it is so ordered.
  Mr. CHAFEE. Mr. President, I ask unanimous consent that the pending 
amendments be set aside at this time.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                           Amendment No. 773

  Mr. CHAFEE. Mr. President, I send to the desk an amendment on behalf 
of Senator Faircloth and ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Rhode Island [Mr. Chafee], for Mr. 
     Faircloth, proposes an amendment numbered 773.

  Mr. CHAFEE. Mr. President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       On page 59, after line 20, insert the following:
       (6) Flow Control Ordinance.--Notwithstanding anything to 
     the contrary in this section, but subject to subsection (j), 
     any political subdivision which adopted a flow control 
     ordinance in November 1991, and designated facilities to 
     receive municipal solid waste prior to April 1, 1992, may 
     exercise flow control authority until the end of the 
     remaining life of all contracts between the political 
     subdivision and any other persons regarding the movement or 
     delivery of municipal solid waste or voluntarily relinquished 
     recyclable material to a designated facility (as in effect 
     May 15, 1994). Such authority shall extend only to the 
     specific classes or categories of municipal solid waste to 
     which flow control authority was actually applied on or 
     before May 15, 1994. The authority under this subsection 
     shall be exercised in accordance with section 4012(b)(4).

  Mr. CHAFEE. Mr. President, this deals with flow control and it 
pertains to a community in North Carolina which had a very specialized 
situation. In effect, it is a technical amendment. I urge its adoption.
  The PRESIDING OFFICER. Is there further debate on the amendment?
  Mr. CHAFEE. Mr. President, this has been cleared on both sides.
  The PRESIDING OFFICER. If not, the question is on agreeing to the 
amendment.
  The amendment (No. 773) was agreed to.
  Mr. CHAFEE. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LAUTENBERG. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LAUTENBERG. Mr. President, I ask unanimous consent that the 
pending amendment before the Senate be set aside for such length of 
time as it takes me to offer an amendment which has been accepted by 
the other side.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                           Amendment No. 775

  (Purpose: To revise the provision providing additional flow control 
                               authority)

  Mr. LAUTENBERG. Mr. President, I send an amendment to the desk and 
ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       [[Page S6483]] The Senator from New Jersey [Mr. Lautenberg] 
     proposes an amendment numbered 775.

  Mr. LAUTENBERG. Mr. President, I ask unanimous consent that reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       On page 58, strike line 23 and all that follows through 
     page 59, line 20, and insert the following:
       ``(5) Additional authority.--
       ``(A) Application of paragraph.--This paragraph applies to 
     a State or political subdivision of a State that, on or 
     before January 1, 1984--
       ``(i) adopted regulations under State law that required the 
     transportation to, and management or disposal at, waste 
     management facilities in the State, of--
       ``(I) all solid waste from residential, commercial, 
     institutional, or industrial sources (as defined under State 
     law); and
       ``(II) recyclable material voluntarily relinquished by the 
     owner or generator of the recyclable material; and
       ``(ii) as of Jan 1, 1984, had implemented those regulations 
     in the case of every political subdivision of the State.
       ``(B) Authority.--Notwithstanding anything to the contrary 
     in this section (including subsection (j)), a State or 
     political subdivision of a State described in subparagraph 
     (A) may continue to exercise flow control authority 
     (including designation of waste management facilities in the 
     State that meet the requirements of subsection (c)) for all 
     classes and categories of solid waste that were subject to 
     flow control on Jan 1, 1984.''

  Mr. LAUTENBERG. Mr. President, this amendment follows the construct 
of this bill by protecting flow control authority that was in effect 
before May 15, 1994. Its provisions will sunset in 30 years.
  With these limitations or restrictions, the amendment is narrowly 
crafted to respond to a very special situation in New Jersey, about 
which I spoke on the floor yesterday. I appreciate the willingness of 
the committee chairman, Senator Chafee, and the subcommittee chairman, 
Senator Smith, to accept this narrowly crafted amendment, which will 
avoid the need for New Jersey to export increasing volumes of waste and 
will permit the State to meet its self-sufficiency goals by the year 
2000.
  While I cannot say that I share the enthusiasm that some have for the 
structure created by this bill, I, nevertheless, accept it. At present, 
I intend to support the bill and vote for it. I say at present, 
obviously, because if there are any amendments that are new and 
adopted, I reserve the right at that point to reexamine my decision.
  At present, as I say, I intend to support the bill. I hope and trust 
that the bill itself will quickly be adopted in the Senate, in 
conference, and sent to the President to be signed into law. Otherwise, 
New Jersey and many other States face a potential waste disposal crisis 
and serious financial disruption of the plans and the indebtedness that 
exists out there.
  As I earlier said, it has been my understanding that the chairman of 
the subcommittee, who I worked very closely with on several 
environmental matters, Senator Smith, has accepted this amendment. I 
ask him for any comments he wants to make.
  Mr. SMITH. Mr. President, we have accepted the amendment. The Senator 
from New Jersey has mentioned his amendment is a special situation in 
New Jersey. We are aware of this. It was the spirit and intent of the 
compromise language in the bill to deal with those special 
circumstances that New Jersey has, being an entire system for flow 
control.
  Even though we have some philosophical disagreements on the subject 
of flow control, part of the very carefully crafted compromise was that 
we would do our best to deal with those folks who had made certain 
commitments in this rather unique situation in New Jersey.
  This side has no objection to the amendment.
  Mr. LAUTENBERG. Mr. President, I thank the subcommittee chairman.
  Mr. President, this amendment recognizes the unique situation in New 
Jersey. New Jersey is the only State in our Nation in which all 
municipal solid waste is now flow controlled and has been flow 
controlled for over a decade. This extensive use of flow control was 
necessary in order to reduce our exports of garbage to other States. 
And it has worked.
  New Jersey has decreased exports by 50 percent since 1988 and we are 
on target to be self-sufficient by the year 2000.
  However, we do face some problems in terms of our existing 
facilities. Although New Jersey already recycles 53 percent of its 
waste stream, New Jersey exports 2 million tons of waste. There is not 
sufficient capacity in my State today to handle that volume. Facilities 
will be needed if we are to further reduce exports and become self-
sufficient.
  Therefore, New Jersey will need to build new facilities. Without flow 
control, however, it will be impossible to provide the needed capacity.
  Lenders will not finance new facilities when it appears waste can 
easily and cheaply be exported. Without this amendment, therefore, it 
will be impossible to handle the waste volumes that we do export and we 
will continue to export more waste. That is not what Senators from 
other neighboring States want. And it is not what New Jersey wants.
  New Jersey has attempted, probably more than any other State, to 
limit its exports. Title I, to restrict exports of solid waste, and 
further restrictions discussed by Mr. Coats, will make it harder to 
send waste across State lines.
  Under my amendment, New Jersey will be able to live with some 
interstate restrictions because the amendment will protect the system 
New Jersey has worked so hard to develop. Under this amendment, title I 
restrictions on interstate shipments will not be a problem to my State.
  And the title II flow control provisions will allow facilities to be 
built so that New Jersey can control and dispose of its waste.
  This amendment follows the construct of the bill in that it protects 
flow control authority that was in effect before May 15, 1994. It will 
sunset in 30 years.
  With these limitations and restrictions, this amendment is narrowly 
crafted to respond to the very special situation in New Jersey that I 
spoke of yesterday on the floor.
  I appreciate the willingness of Chairman Chafee and Subcommittee 
Chairman Smith to accept this narrowly crafted amendment which will 
avoid the need for New Jersey to export increasing volumes of waste and 
will allow the State to meet its self-sufficiency goals by 2000.
  While I cannot say that I share the enthusiasm that some have for the 
structure created by this bill, I do accept it. I intend to support the 
bill and vote for it. And I hope and trust it will quickly be adopted 
in the Senate, conferenced, and sent to the President to be signed into 
law.
  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  So the amendment (No. 775) was agreed to.
  Mr. LAUTENBERG. I move to reconsider the vote.
  Mr. SMITH. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. SMITH. Mr. President, it is a unique situation when the Senator 
who has an amendment on the floor is presiding, because he is in the 
unfortunate situation of not being able to respond at this particular 
time. I apologize to the Senator for that, because I have another 
commitment. I have to chair a subcommittee meeting at 1:30.
  I do want to make some remarks, but at some point later, if the 
Senator wishes to engage in any type of colloquy, I would be more than 
happy to do that with him.
  Mr. President, I want to clarify that the current business before the 
Senate is the Kyl amendment; is that correct?
  The PRESIDING OFFICER. The Hatch amendment to the Specter amendment 
to the substitute.

                           Amendment No. 769

  Mr. SMITH. I will make some remarks in response to the amendment 
offered by the Senator from Arizona, Senator Kyl, in regard to 
shortening the grandfather to the length of the bonds.
  This is a difficult situation for this Senator, because in concept 
and in philosophy I totally agree with what the Senator from Arizona is 
trying to do.
  I have made my statement here on the floor regarding this issue in 
the opening debate on the bill that I oppose 
[[Page S6484]] flow control. I think that the interstate commerce 
clause should be safeguarded. I do not want Congress to interfere.
  The reason why we have had a difficult time with this issue, I say to 
my colleagues, is that there are special circumstances where people 
have incurred a tremendous amount of expense. As the Senator from 
Arizona, Senator Kyl, said in his very eloquent remarks regarding his 
amendment, the free enterprise system should be allowed to work.
  We might say, why did those people go ahead and make these financial 
obligations, knowing full well that they did not have the protection of 
the law? I think that is a very valuable argument and an argument that 
we certainly considered as we crafted this bill.
  The problem was, and we had a hearing on this matter, and as we heard 
from so many witnesses, there truly are some real national hardships 
out there that, in terms of the investors, in some cases through no 
fault of their own, perhaps, although not deliberately misled, some of 
the bondholders probably did not get the full explanation of the impact 
of the Carbone decision and what it meant for all of their investments 
in these bonds.
  It was something that we really struggled with, those members on the 
committee, Senator Chafee and myself and others on the committee, who 
really oppose flow control and did not want to interfere with the free 
market on this issue.
  On the other side there are two sections of the bill. The interstate 
waste transfer is part of this legislation as well. So we have flow 
control and interstate waste. The two parts of this bill, together, is 
a very carefully crafted compromise to move both things forward at the 
same time.
  I guess with some amusement we think of how when laws and sausages 
are made, we would be sick if we knew it. Maybe this is an example of 
that.
  Again, I will with great reluctance oppose the amendment of the 
Senator from Arizona because of the fact it interferes with the 
compromise. I will be specific, again, on the basis of the compromise, 
not on the basis of philosophy.
  We heard testimony from the Public Securities Association that $20 
billion in bonds were used for flow control facilities. So, nationwide 
there is some $20 billion in bonds out there.
  These people have a liability. There is some question, we would say, 
well, we went in knowing full well--maybe they did, maybe they did not. 
This Senator is not convinced that all investors knew this. I could be 
wrong.
  I think it is pretty obvious, based on the testimony, all investors 
were not fully aware of the impact of this, and I think people invested 
in these facilities believing that they were going to have the 
protection of flow control. Right or wrong, they believed, in some 
cases, that they did. I am sure on the other side there are many people 
who knew full well that they did not and took the risk. Again, every 
investor bondholder, I do not believe, was fully aware of the 
ramification.
  When Carbone invalidated flow control, this whole situation was left 
in limbo. Nothing is happening, no one knows what to do. No one knows 
whether there will be flow control or no flow control. So here it is 
before the Congress.
  Now, most members on the EPW Committee did not want to have the 
Congress speak to overturning the interstate commerce clause of the 
Constitution.
  There are dozens of incinerators and landfills in immediate danger if 
flow control is not reauthorized immediately. What we have here is not 
only a delicately crafted compromise, but an urgency in the sense that 
every bond based upon flow control authority at this point is 
threatened.
  So I think there is an emergency. Senator Chafee asked me to hold 
hearings on this quickly and to try to move this out of committee and 
to the floor, and it has been on the calendar for quite some time. We 
were looking for an opening to get it here.
  The purpose, again, looking at the negatives of this which the 
Senator from Arizona pointed out, the purpose, though, is to try to 
give relief to these people. It is not to permanently interfere with 
the free market, which is why the 30-year grandfather was placed there.
  The reason for the 30 year was we did not want to go back and review 
every single bond, whether it was a 10-year bond, a 5-year bond, 20-
year bond, or 25-year bond. There were not any bonds beyond 30 years, 
which is why we selected that date. Could we have selected 15 years and 
been more in line with what the Senator from Arizona favors? Yes, we 
could have. Could we have selected the life of the bond as the 
Senator's amendment addresses?
 Yes, we could have.

  The problem is, though, we also added through language in the bill 
the opportunity to upgrade facilities. And I think that is where we get 
into a problem with the amendment of the Senator. If, after the 
expiration of a bond, someone wants to upgrade these facilities--not 
really expand but upgrade, keep them maintained--then they have no 
protection under the Kyl amendment. The underlying bill provides a very 
narrow flow control authority to protect these bonds. It may not be a 
perfect compromise, it certainly is not. But I think it is a fair 
compromise. It serves notice on everyone.
  I hope 20 years from now, 25 years from now, Congress will not go 
back and extend this. It is our intent it be ended. Everybody, all 50 
States, all the entities in those 50 States, all the haulers and the 
Governors and the systems, everyone who is involved with flow control 
in any way should be on notice that, effective with the passage of this 
bill, it is over in 30 years and they ought to plan accordingly. That 
is the goal. The Kyl amendment disrupts that slightly and provides more 
uncertainty, although it is well intended. Again, the Kyl amendment 
does limit flow control. There is no question about it. It limits it 
further than the underlying bill. Philosophically I agree with that 
but, again, it is the compromise we are concerned about.
  The amendment would provide grandfathered authority only until the 
time the bonds are paid off. So if you have a 15-year bond and a 
contract that extends beyond those 15 years, or the need to upgrade 
your facility beyond the 15-year length of the bond, then you cannot do 
it under the Kyl amendment. You cannot do it with the protection of the 
flow control legislation.
  This amendment also does not cover contracts. It will create havoc in 
a number of cities and towns that made financial commitments based on 
the mistaken impression--true, mistaken impression--that they had this 
authority. I think the phrase ``mistaken impression'' really goes to 
the heart of why I came down on the side I did on the amendment, on the 
Kyl amendment, as well as the underlying bill. There are innocent 
people here who have been impacted. I could not in good conscience 
allow that to continue without the protection they thought they had 
when they entered into this agreement.
  Maybe it is an interesting conclusion here that it is a compromise, 
and if to you wanted to put it in direct statements, those who love 
flow control do not like the Smith-Chafee bill. Those who oppose flow-
control do not like the bill. I think that probably means the 
compromise is about right. It is in the middle.
  I know there are those who are going to, from a philosophical 
perspective, support the Kyl amendment. My fear, and I think it is a 
legitimate fear, is that at the time the Kyl amendment is agreed to and 
becomes part of the underlying bill I think it could possibly, 
conceivably, kill the bill or at least kill the compromise. I think if 
that happens and the bill gets pulled back from the floor because of 
the budget legislation which will be coming up next week, the budget 
resolution that will be coming up next week, then I do not know when we 
would get back to it as we get into the pressures of time with more 
legislation. Again, those people who need immediate relief will not 
have it.
  I might just say in conclusion, we have tried to work with a number 
of States that have had concerns: Florida, Maine, Minnesota--the 
Senator from Minnesota, Senator Wellstone, and I agreed on an amendment 
yesterday. Senator Lautenberg and I disagreed on another amendment in 
New Jersey. States do have special considerations and special problems. 
But, again, the intention here--and I want to make 
[[Page S6485]] this point, because it is important--the intention here 
was to strike this balance and not to move too far. Not to allow open-
ended flow control authority on the left, if you will, on the one side; 
and at the same time not to allow it to go back so far over to the free 
market side on this particular bill that we would lose the balance.
  I might say for the benefit of the Senator from Arizona, we have 
rejected a number of amendments that would allow for open-ended action. 
If this community says, ``We would like to think about having flow 
control at some point within the 30-year period, will you exempt us?'' 
The answer is, ``No, we will not.'' In other words, there had to be 
some financial commitment, preferably a bond or contract, some amount 
of money had to be committed, usually in the form of a contract or a 
bond. So we were very, very tough on those people who came to us. We 
did not agree to allow that far-reaching aspect of the bill.
  Again, it might not be exactly what everybody wanted but it is a 
compromise and I urge my colleagues, no matter whether you are moving 
further to the free market side as I am, or whether you are moving 
further toward flow control where Senator Lautenberg and others are, 
whichever one of those positions you favor, I urge my colleagues to 
stay here in the center, in the compromise, and reject the Kyl 
amendment and reject any amendments on the other side that may come up 
to expand flow control authority. So, on the one hand let us not expand 
it. On the other hand, let us not restrict it.
  I again encourage my colleagues, when the vote does come on this 
amendment, to defeat it for the reasons given.
  Mr. President, I yield the floor. If no other Senators are seeking 
recognition, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DeWINE. Mr. President, Mr. President, I ask unanimous consent 
that the order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DeWINE. Mr. President, I further ask unanimous consent to speak 
as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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