S6426 CONGRESSIONAL RECORD — SENATE May 10, 1995

Yeltsin and the Russians, but typically

we think of these summits as producing something beneficial for our side.

It does not seem to me there has been

one single step in the direction that we

would like to see us go as a result of

this summit.

The issue, of course, is not whether

we have a relationship with Russia. We

all want to have a relationship with

Russia. The question is, What kind of

relationship is it going to be?

During the past 2 years, we have seen

a real change in the makeup of President Yeltsin’s inner cycle or kitchen

cabinet. He has fired reformers and replaced them with hard-line reactionary

advisers who are suspicious of free

market reforms and suspicious of democracy. Some observers have said

there is only one reformer left in the

cabinet and he is the one they sent

over here to the United States to talk

to people in the Senate.

In a recent hearing, I asked Deputy

Secretary Talbott to identify a single

voice of reason in the kitchen cabinet;

just one. Secretary Talbott changed

the subject.

Yeltsin’s decisions are making it

very difficult to sustain support for assistance to Russia.

In February, Secretary Christopher

said the President would not go to

Moscow for a summit if Chechnya were

unresolved. Well, the President is there

and Chechnya is unresolved. Almost as

soon as that line was drawn in the sand

by President Clinton, he backed down.

Current Russian policy test United

States interests and principles. In fact,

current Russian policy makes no sense

at all, Mr. President.

In Chechnya, basic principles of democracy and human rights are under

siege. It really begs the question: Does

a democratic government turn its guns

on its civilians, killing 25,000 men,

women, and children?

Preliminary indications are we have

accepted Yeltsin’s determination that

this is basically an internal matter and

is none of our business. Essentially,

that is what President Yeltsin said:

‘‘This is our affair. You butt out, President Clinton.’’

Both our security interests and our

allies are threatened by the pending

sale of nuclear technology to Iran. The

biggest current issue between ourselves

and the Russians is the pending sale of

nuclear technology to Iran. And the

President has said earlier in the year

he would not go to Moscow for this

celebration of V-E Day unless there

was progress on that issue. Well, there

has been no progress. The nuclear sale

continues to go forward.

This agreement that the administration has announced that there will be

no sale of the centrifuge technology is

simply not adequate. That is a figleaf

to allow President Clinton to claim

somehow that progress was made on

deterring the nuclear transfer to Iran

when, in fact, no real progress has been

made.

In addition to that, Mr. President,

nothing has changed on the issue of

NATO expansion and other European

security questions. Everyone was surprised by the Russian reversal last December when Yeltsin and Kozyrev denounced NATO plans to enlarge itself

and rejected the Partnership for Peace

program. Combined with recent statements that Moscow has the right to use

force to protect Russian minorities in

the Soviet Republics, leaders across

the region are justifiably concerned. It

should have been essential for the summit to produce a concrete commitment

by Yeltsin to respect the political, economic and territorial sovereignty of

those countries that used to make up

the Soviet Union.

In summary, Mr. President, what is

going on here is the Russians are saying, ‘‘We don’t want you to expand

NATO. And, oh, by the way, all the

countries that we used to dominate,

that used to be part of the Soviet

Union, are our business and none of

yours.’’

No progress has been made at this

summit on any of these issues; not a

single shred of evidence of any progress

whatsoever on any of these issues.

Mr. President, I, like many Members

of the Senate, want to get along with

the Russians. Obviously, we have a better relationship than we did during the

cold war, but some days I wonder

where this relationship is going. It

seems to me, by pursuing this Moscow

myopia, this view that whatever

Yeltsin wants Yeltsin gets, by pursuing

that particular point of view, we stand

no chance of having the opportunity to

build a genuinely constructive relationship with the Russians.

So let me just, in sum, Mr. President,

say that I think this summit has been

a disappointment. I am sorry that

President Yeltsin has been unable to

commit to any of the progress that we

had hoped for, but mostly I am sorry

that President Clinton chose to go.

Why is he there?

At virtually every summit in my

memory, something has been brought

back that was arguably in the interest

of the United States. President Clinton

has gone to Moscow, gone to Moscow at

President Yeltsin’s request, given

President Yeltsin an opportunity to

look good, made no progress on the nuclear sale to Iran, made no progress on

the expansion of NATO, and comes

home emptyhanded. So, by any standard, Mr. President, this summit is a

disappointment.

INTERSTATE TRANSPORTATION OF

I yield the floor.

MUNICIPAL SOLID WASTE ACT

fThe Senate continued with the consideration of the bill.

Mr. COATS addressed the Chair.

The PRESIDING OFFICER. The Senator from Indiana.

Mr. COATS. Mr. President, I am very

pleased that the Senate today has

turned its attention relatively early in

the session to a bill of primary importance to my State of Indiana and to

many other States in this Nation. It is

a bill that the Senate is very familiar

with, one to allow States to limit the

importation of out-of-State waste. We

have discussed it on numerous occasions.

I want to thank the chairman of the

subcommittee, Senator SMITH of New

Hampshire, and the chairman of the

full committee, Senator CHAFEE, for

bringing this bill to the floor, as well

as the ranking member, Senator BAUCUS, and, of course, Senator DOLE for

scheduling this legislation.

Early in my Senate career, which has

not been that long, I observed a phenomenon in Indiana as I was driving

through the State. All across the State

homemade signs posted on telephone

poles or stuck in the ground appeared

that said, ‘‘Don’t dump on us.’’

I began to inquire what the subject

was. We checked into that and found

that the citizens throughout Indiana,

many small towns in particular, found

that, instead of the local garbage dump

which received a truck or two of local

community waste, garbage, a day, suddenly they discovered that 18-wheelers

were lined up for blocks waiting to

enter the local dump to dump their

waste. And people said, ‘‘Where is all

this coming from?’’

You really cannot call these facilities landfills, because they were designed for receipt of small amounts of

everyday household trash, waste, that

was picked up maybe a couple of times

a week at most and delivered to the

local dump.

In a little more than a year, our

State saw negligible volumes of out-ofState trash that were coming into the

State explode to more than 20 percent

of our total waste disposal. Virtually

overnight, the State of Indiana became

a target for out-of-State trash.

The statistics do not begin to tell the

story. Because, as I said, the trash parade targeted many small communities

in rural areas in Indiana. So the magnitude of the change was dramatic for

the citizens of those communities.

Let me just tell you one story, the

story of Center Point. This small town

in Indiana, a town of 250 people, had a

local garbage dump. Not a landfill, it

was not certified as a big landfill. It

was just a place where the local citizens were able to dispose of their local

trash. A couple of trucks picked up the

trash in the community and surrounding areas and disposed of it in this

area.

In 1989, the local landfill was purchased by out-of-State investors, and

the site was doubled. Ads began appearing in national magazines that said:

‘‘Send us your trash.’’ Narrow country

lanes were clogged with 18-wheelers

loaded with trash and garbage from

other States. Local citizens, rightfully

so, I believe, began to keep a watch on

a daily basis, on a 24-hour-a-day basis.

They would log in the license plates of

the trucks coming to bring the trash,
May 10, 1995 CONGRESSIONAL RECORD — SENATE S6427

and we found that most of it was coming from just a few States.

I heard about the incident. I asked

my staff to take me there. We went

early one morning, and we stood on a

hill overlooking the landfill, which

now had been expanded considerably. I

saw on this narrow, unpaved country

lane a whole long line of 18-wheeler

trucks that had driven all night to

bring east coast waste to Indiana because the disposal fees were so much

less than they were at the point of origin.

Suddenly, this little town of Center

Point was overwhelmed, as its fragile

country roads were torn up by the

weight of the 18-wheelers, as signs and

posts were knocked over as the 18-

wheelers tried to negotiate the narrow

turns, and as a landfill facility, a garbage disposal facility designed to take

care of the needs of that community

for many, many years in the future

suddenly was the subject of unwanted

and extraordinary volumes of trash,

which became obvious were going to

quickly fill up that local community’s

disposal site, leaving its local citizens

with no local option to deal with their

own waste problem.

Capacity that was sufficient to meet

local needs for years was suddenly

being used up in months. Hoosiers were

understandably angry, and I was angry.

We had a very clear message we wanted

to deliver, and I delivered that on this

Senate floor: That our State, which

had mustered the political will to site

landfill capacity in our own State borders, within those borders, to dispose of

our own generated waste, were overwhelmed by trash flowing from States

that were unwilling to responsibly handle their own waste.

Today, Mr. President, over 15 million

tons of trash cross State lines. Indiana,

Pennsylvania, Ohio, Virginia, and

Michigan have borne a disproportionate share of receiving that capacity.

We happen to be on an interstate route

that runs east to west, Interstate 70.

Interstate 70 has become the trash corridor for the flow of east coast trash to

lower fee landfills in the Midwest.

Americans throw away about 180 million tons of solid waste yearly. That is

enough trash to spread 30 stories high

over 1,000 football fields. The question

that confronts us is where are we going

to put all this? Some communities

have been pretty creative. Ten miles

from downtown Detroit, there is an old

landfill accommodating 21 years’ worth

of the city’s garbage. It rises 150 feet

into the sky. It no longer receives

trash, but city officials have covered it

with some top fill and they make snow

in the winter and they declared it a ski

area. It is colloquially called ‘‘Mount

Trashmore,’’ and it attracts thousands

of visitors a year. But for most, trash

is not a recreational resource; it is a

municipal nightmare. Landfills fill up,

and there is nowhere else to take the

waste.

So our Nation’s heartland is becoming our Nation’s wasteland as trash increasingly moves across State lines following the route of cheap disposal from

the East to the West.

Of the 15 million tons of trash crossing State lines, Indiana, Pennsylvania,

Ohio, Virginia, and Michigan have

borne, as I said, a disproportionate

share. This rising tide of trash wreaks

havoc with our planning efforts which,

by our own State law, must ensure

local capacity for 20 years.

Some States have reacted to this influx of out-of-State trash by forbidding

all new landfill sites. Others have

taken measures which amount to the

nationalization of the trash industry

by banning for-profit disposal facilities

in order to give States control over

this. Because public facilities may discriminate between in-State and out-ofState, one method of eliminating unwanted out-of-State trash is to restrict

the commercial sector altogether.

These are not feasible solutions.

These do not go to solving the problem.

Our own legislature has tried to take

care of the problem, but has found that

its ability to act effectively is extraordinarily limited. We had a discussion of

that this morning. The Senator from

Rhode Island, and others, talked about

the fact that under the commerce

clause of the Constitution, garbage

waste is considered a part of interstate

commerce, and unless the Congress affirmatively acts to grant States and

local jurisdictions the authority to

control the flow of waste, they do not

have the power to do so. That is why

we are here. That is why we have been

pursuing for these last several years

the prospect of giving these States and

these local communities the authority

to regulate the flow of out-of-State

trash.

We passed laws in Indiana, for instance, that would impose additional

fees, that allowed us to check the content of the material coming in. The

statute that we passed was on the

books 4 days before it was challenged

in the court as a violation of the commerce clause, and that case eventually

was lost by the State.

Frustrated by the court decisions, Indiana has turned to bilateral agreements. Our Governor and the former

Governor of New Jersey agreed to cooperate in stopping illegal waste from

New Jersey. They agreed to share information and to pursue joint investigations.

Mr. President, the vast majority of

waste shipped across State lines is not

illegal waste, it is just ordinary garbage. It is the coffee grounds and eggshells and orange peels, discarded Dr.

Pepper bottles, the newspaper, unless

it is recycled—just the ordinary waste

that each of us carries out to the trash

bin in the garage and puts out once or

twice a week in front of the house.

In addition, we have no way to accurately count the amount of trash we

are receiving illegally to determine

what that is. Many shipments are sent

indirectly through collecting points in

other States. To determine what came

from a particular State to Indiana that

might be legal or illegal requires a procedure that is an investigative nightmare.

As our own Governor has indicated,

and as many other Governors have indicated, and as I believe a solid majority of Senators and Representatives

have indicated, the only hope for a solution lies with Federal legislation.

In November 1989, my first year in

the Senate, the 101st Congress, I introduced the first bill in the Senate which

would allow States to ban, regulate, or

impose fees on the interstate transportation of solid waste. After a strenuous

debate, this bill passed by a very significant and, I think, surprising vote of

68–31. Unfortunately, in the conference

with the House of Representatives, the

bill which was passed here was stripped

from that bill and the legislation died

before becoming law.

In the very next Congress, I again introduced legislation and again forced

the issue on the Senate floor. And,

again, the Senate acted decisively on

the interstate issue, now by a vote of

89–2. The Senators became aware of the

problem and realized that their States

may not have been the current target

of out-of-State waste, but a little bit

further down the road they were going

to become targets. Many realized that

the problem we identified in Indiana in

1989 was now a problem in their State.

Senator EXON came to me and said,

‘‘Since you raised this issue, I have discovered communities in my own State

that are becoming the recipients of

out-of-State trash and they are overwhelming our efforts to deal with

this.’’

That bill I introduced in the 102d

Congress operated on three basic principles: First, it allowed communities

that did not currently receive out-ofState trash to prohibit new shipments

without express authorization. Second,

it grandfathered facilities that were receiving trash from other States in

order to give the exporting States time

to site their own State capacity. It recognized that States in the crowded east

coast corridor had significant waste

disposal problems, and that to simply

slam the door and say that, as of this

date forward, you cannot export any

trash whatsoever was simply not going

to be a solution to the problem. So in

recognizing that, we grandfathered a

certain amount of shipment of out-ofState waste.

Third, it allowed Governors the authority to freeze volumes at current

levels at the grandfathered facilities,

because we wanted to give the Governors of the importing States the ability to say we can continue to take so

much with this capacity but no more.

Again, that legislation, while it passed

the Senate 89–2, did not pass the House

of Representatives and it died in that

Congress.

In the next Congress, the 103d Congress, I used those principles to craft
S6428 CONGRESSIONAL RECORD — SENATE May 10, 1995

legislation that the Senate again positively addressed and the House positively addressed, but unfortunately it

died in the last hours of the session

coming very close to being enacted

into law.

Now, here we are in the 104th Congress and I indicated back in 1989 that

this issue was not going to go away.

They can kill it in conference; the

House can kill it; it can die by procedural methods, but I was not going to

give up. I was like a dog who had his

teeth sunk deep in the bone and I was

not going to let go; I was going to come

back and back and back until we got

this thing passed. And here I am in the

104th Congress, and I hope this time we

will be successful. I am getting lockjaw

from keeping my teeth locked onto

this issue. I would like to release that

grip, send it to the President, get it

signed into law, and move on to some

other legislation.

Now, the bill before us today recognizes the principles upon which we

have operated. The bill, I think, is a

reasonable compromise that grants

States and local communities the authority that they need to plan for their

own needs, to say ‘‘no’’ to out-of-State

trash. It recognizes the problems of exporting States, and it gives them methods and ways in which to reduce significantly the amount of trash they

send out of State. It balances a lot of

different needs. As has been described

here, it deals with flow control and

ground water monitoring.

The heart and soul of this bill, however, is the question of interstate trash

shipment. We are working now on some

areas of the bill that we feel may need

some adjustment, as it has come out of

committee. There are negotiations underway, and I trust they will be successful and will allow us to avoid offering some amendments to clarify some

of these provisions.

We will talk a little bit more about

that later.

Mr. CHAFEE. I wonder if I can ask a

question.

Mr. COATS. I yield to the Senator.

Mr. CHAFEE. First, I want to confirm that indeed the Senator has sunk

his teeth and jaws deep into this issue.

I will second everything he said about

his determination on this whole

project. He has been at it for, I guess,

5, 6 years, whatever.

Mr. COATS. Six years.

Mr. CHAFEE. The Senator mentioned he had some amendments which

I guess he is going to discuss now.

Mr. COATS. Actually, I plan to defer

discussion of those amendments now

because we are in negotiation with the

Senator from Rhode Island, and other

Senators of affected States, to try to

reach a resolution on these amendments, which we can hopefully put into

a package that would be acceptable and

offer them as a package rather than as

individual amendments. So I would be

premature in offering those amendments at this particular time.

Mr. CHAFEE. I am caught in kind of

a bind in that I want to be here when

the Senator makes his remarks and offers his amendment. But I may have to

step out for a minute or two. Who is

working with the Senator in connection with his amendments? You mentioned ‘‘we.’’ Is it several of you?

Mr. COATS. I say to the Senator

from Rhode Island that it is virtually

all of the affected parties, both from

the exporting States as well as the importing States that are working together to try to resolve these issues.

Mr. CHAFEE. Fine.

Mr. COATS. I will not bring up any

amendments in the immediate time period ahead of us here, and certainly the

Senator will have an opportunity to

leave the floor.

Mr. CHAFEE. OK. Because there is

going to come a time when we are

going to want amendments brought

forward. If the Senator feels he is not

quite ready, we will try and complete

any negotiations. As the leader has indicated, he wants to finish this bill by

the end of the week. My hope is that

we can finish it tomorrow. So we will

work with your folks and see if we cannot come to some conclusion at least

by the time we go to work tomorrow.

Mr. COATS. I appreciate that very

much. Obviously, the Senator’s cooperation and input is necessary for

this. I am anxious, also, to move forward on this. I would be delighted if we

can finish this bill tomorrow and not

have to carry it over until Friday. We

are working as we speak on this matter

and hope to have some answer to the

Senator shortly.

Mr. CHAFEE. I thank the Senator.

Mr. COATS. In conclusion, Mr. President, let me just say that we have tried

several approaches. We have tried the

path of patience. We have waited our

turn and bided our time. We have

agreed to continue to accept some levels of out-of-State waste in exchange

for having realistic controls over how

much waste we will receive from other

States. There is simply no other way

for States to realistically plan for their

own future capacity, unless we can

enact legislation that gives them the

authority to regulate the volume of

out-of-State trash which that State receives.

The problem here is very basic. There

is no negotiation; there is no arm’s

length or both-parties-at-the-table negotiation that takes place, because

States are virtually powerless to sit at

the table with the exporters and sit

down and say, let us establish some

reasonable volumes, let us make sure

that we have the capacity to receive

what you are sending in; let us negotiate the fees on which this will be

shipped back and forth; let us determine the terms of the contract.

Because of the Constitution’s commerce clause, it is possible—and it is a

practice that has been used over and

over again—for someone outside the

State, or even inside the State, to purchase a landfill and suddenly open up

that landfill, which was designed originally for local needs, to massive volumes of out-of-State trash, which fills

up the landfill in a very short period of

time and leaves the local citizens few,

if any, alternatives. In fact, it forces

them to ship their waste out of State

in order to find a place to dispose of it.

So we end up with a game of pass the

trash. Everybody is passing it on down

the highway, generally from east to

west. Not always. Metropolitan areas

to rural areas, across State lines, it is

pass the trash.

As the landfills get filled up, no new

ones get built, no new efforts put in

place to dispose of out-of-State waste,

to reduce the amount, to recycle, to reduce the amount generated initially, to

find other ways to dispose of the waste.

So we just are moving it around the

country to different locations, filling

up the cheapest hole in the ground that

is available for a certain fee for out-ofState trash.

In the 5 years that Congress has debated the issue, the trucks continue to

roll. The garbage continues to mount.

The changes that we are proposing here

are not an attack on any particular

State. They are a defense of our own

States. They are not rooted in bitterness, but they are rooted in urgent

need.

Again, I want to commend my colleagues on the Environmental Committee for moving expeditiously in this

new Congress on this legislation. I look

forward to working with them, to

strengthening the bill to ensure that

we afford real protection to importing

States while allowing exporters sufficient time to get their house in order.

That is our goal, Mr. President. I am

confident that we can accomplish that

goal in the time that we have in the

next day or two. I am very, very hopeful that within 48 hours or so we will be

able to report that the U.S. Senate has,

once again, taken action to deal with

this problem and that we will work

carefully and closely with the House of

Representatives, which in my understanding is moving forward on this expeditiously also, and finally resolve

this issue and send the legislation to

the President’s desk for his signature,

which in the past he has indicated he

will sign.

Mr. President 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

take to the floor to discuss the provisions of S. 534, the legislation to address the issue of interstate transportation waste and flow control authority. Very often when one mentions flow

control authority, I sense that heads
May 10, 1995 CONGRESSIONAL RECORD — SENATE S6429

begin to drop because of the rather arcane subject but a very important one.

If I can just take a moment to say

that flow control—and perhaps it has

been discussed on the floor and I

missed it but I think the importance of

the issue will bear some repetition—

gives the States the ability to control

the flow of household trash, particularly trash within State borders. And

while that does not sound like very

much to ask, the fact is that demands

are being placed on external facilities’

availability so that it can simply be

trucked, often out-of-State to other

States, where in many cases there is an

objection to receiving volumes of

trash. Though there was a Supreme

Court case decision not too long ago

that dealt with this and said you cannot stop this, it directs the Congress to

resolve the problem and allowed the

parameters under which they were to

operate to do just that.

So if it begins to inhibit the trucking

or the transportation of waste outside

the State, then within a State, they

have to have some way of controlling

where it goes. Again, though the subject seems a bit arcane, the fact is that

it has enormous influence on States

like my own who are trying to resolve

the need, the ability to deal with their

waste in an orderly fashion.

Without significant changes to S. 534,

my State is going to experience a severe financial crisis precipitated by the

Senate’s failure to delegate waste management decisions to the States. I am

hoping through the amendment process

that we can improve the bill so that

States can continue to handle their

waste the way they deem appropriate.

Title I of the legislation, which addresses interstate restrictions, which I

was talking about earlier, is essentially identical. Title I of S. 2345, which

was approved by the Senate Environment and Public Works Committee last

year, overturns the decision of the Supreme Court in the case of New Jersey

versus Philadelphia. The Supreme

Court’s decision said that interstate restrictions are unconstitutional because

a State cannot discriminate against a

commodity—in this case out-of-State

trash—from being transported. The

court said that States cannot give unfair competitive disadvantage against

out-of-State haulers, those who are

trucking the material from one State

to the other who are out of State, for

example, Pennsylvania to New Jersey,

who want to dispose of trash where it

makes the most economic sense.

So the first title will allow the Governors in each State to restrict imports

of trash into their States. I have supported this title in the past and will

support it in the future if States are

given the authority to find an alternative to this obstructive commerce to

find in State solutions that now out-ofState exports would restrict.

Unfortunately, S. 534, while giving

States new power over interstate shipment of waste, actually reduces the authority that they have enjoyed within

a State to properly handle their waste.

That is a principal problem that I have

with title II of S. 534, the title that

deals with flow control authority within the State. Once again, I will take a

moment to explain why States use flow

control.

Congress passed the Resource Conservation and Recovery Act in 1976.

The acronym is RCRA. RCRA made

standards and improved solid waste

disposal methods and practices. Under

subtitle (d) of that law, State and local

governments developed comprehensive

waste management plans that meet

minimum standards that are set by

EPA. Although the law created national standards imposed through the

solid waste management plans, Congress recognized that solid waste was a

problem traditionally managed at the

local level. Under the philosophy of

local control, subtitle (d) gave State

and local governments the flexibility

they needed to determine the best way

to meet the national standards.

In response to the Federal mandate

that waste should be disposed of in an

environmentally sound manner, it is

hard to disagree with that. Many local

governments constructed modern,

state-of-the-art recycling systems,

waste-to-energy facilities, and sanitary

landfills. Integrated waste management systems were implemented to

promote recycling, consumer education

and proper management and disposal of

household hazardous waste.

While necessary and desirable, these

facilities were also very costly. The

Federal Government does not share the

cost of municipal solid waste management disposal at the State and local

level. States and local governments,

therefore, adopted various means to finance municipal solid waste management services and facilities. The general approach taken by State and local

government was to issue revenue

bonds. These bonds were secured by

long-term contractual promises which

rely on a steady, dependable, and consistent quantity of waste for disposal

in new facilities. It was their revenue

streams, necessary to pay off the bonds

and to meet the financial obligations,

that were incurred in financing these

facilities. To ensure guaranteed quantities of waste, cities and towns enact

laws requiring that trash generated

within their borders be disposed of in

these recently financed facilities.

Those laws are the ones we commonly

call flow control laws.

Now, these flow control laws were

consistent with Congress’ instruction

in subtitle D that State and local governments endeavor to secure long-term

contracts for supplying resource recovery facilities and other environmentally responsible waste disposal facilities. It is also consistent with several courts of appeal and State supreme court decisions. However, on

May 16, 1994, the legal basis for flow

control was overturned by the Supreme

Court in the case of Carbone versus

Clarkstown. In the 6-to-3 decision, the

U.S. Supreme Court ruled that a New

York municipality could not require

that garbage generated in the locality

be sent to a designated waste management facility.

And again, though the language is

common, I think it is important to understand what the outcome was, that

is, if a community suddenly elected to

abandon its responsibility to provide

trash for a disposal facility, then it left

that facility, already financed, with insufficient resources, insufficient revenues to continue to meet the financial

obligations, as well as keeping the facility operating. They had a choice in

many cases. They could ship it out of

State. But interstate commerce, as we

now know it, looks as if it is going to

be obstructed by the first part of the

law being proposed here, the bill that is

before the Senate.

The Court held that the Clarkstown,

NY, flow control ordinance interfered

with interstate commerce and deprived

out-of-State firms access to the local

trash market. Again, out-of-State

firms are those that cart the material

to landfills that are licensed in other

States.

As in the New Jersey versus Philadelphia case, States could not discriminate against out-of-State haulers. In

other words, if New Jersey did not

want that garbage, that trash brought

into their State, it would have been a

violation of law, so said the Court in

the case of New Jersey versus Philadelphia.

The Court held that since Congress

had not specifically delegated this

power to the States, these flow control

laws violated the interstate commerce

clause of the Constitution.

The May 1994 decision in Carbone invalidated the historic right of local and

State governments to manage solid

waste. The case overturned almost 20

years of sound solid waste management

policy and is jeopardizing the solid

waste management systems of the over

40 States that rely on flow control authority to manage their solid waste.

The Carbone decision makes it difficult for cities to guarantee a steady

stream of waste to disposal and processing facilities. Without this guaranteed steady stream of revenues, it will

be virtually impossible for the communities to get financing to build solid

waste management facilities.

Second, this decision could result in

localities losing the revenue generated

by having garbage sent to municipal

disposal facilities.

This would eliminate their ability to

subsidize nonprofitable waste management activities such as recycling and

household hazardous waste programs,

which have been very effective in many

communities, especially in New Jersey.

As we have seen in the District of Columbia, the loss of flow control authority threatens existing recycling programs. This article, entitled ‘‘District

to Suspend Curbside Recycling,’’ from

the Washington Post of April 12, about

a month ago, clearly makes the case
S6430 CONGRESSIONAL RECORD — SENATE May 10, 1995

that private haulers taking trash to

out-of-State locations to avoid the recycling fees led to this financial crisis.

Finally, the Supreme Court decision

puts existing bonds used to finance

waste management facilities at risk. If

localities cannot send an adequate

level of garbage to a facility to generate the revenue needed to pay off the

bonds, those communities face default.

Citizens in the affected communities

could find the possibility of extraordinarily high taxes and the inability to

go to the financial markets for any of

their needs.

The Public Securities Association estimates that $23 billion of bonds are in

jeopardy because of the Carbone decision and every citizen, every taxpayer

in almost every State, has to worry

about this because suddenly they could

be faced with having to make up the

revenue that is lost as a result of the

decision to ship the material out of

State because there is no flow control

on this.

In last year’s bill, in difficult negotiations with importing States, exporting States, and the waste industry, accommodation was reached. S. 2345 overturned both the Philadelphia case and

the Carbone case. It recognized that

trash was a local issue and one where

States should make the rules, not the

Supreme Court and not the Congress.

Some amendments were made to assure the maximum amount of competition was included in any flow control

program, competition between simply

shipping it out of State and the need to

furnish the local facility with appropriate revenue opportunities. Certain

restrictions were placed on Governors’

ability to overturn existing contractual relationships. Because of concerns

of the waste industry, flow control

could not be expanded to States that

had not used it before the Carbone decision. Unfortunately, at the last

minute, the bill failed to win unanimous support.

Instead of starting from last year’s

compromise, this year’s bill goes in

two different directions. Almost identical to last year’s bill, Governors are

given the power to shop interstate

shipment of waste. However, the bill

goes in the other direction as far as

waste within States. Title II, the flow

control title, only allows existing flow

control where default is likely. The

title is based on the philosophy that

flow control is wrong and anticompetitive, and that protection should be provided for only those communities that

are in immediate financial jeopardy because of the Supreme Court decision in

Carbone.

Title I, the interstate title, discriminates against free market solutions by

allowing States to say no to economically viable interstate shipments. Title

II, however, attempts to enshrine the

free market by preventing States from

considering long-term social goals in

addition to short-term economic benefits. Indeed, in its present form, I find

the bill internally inconsistent. Without flow control authority denied to

them in title II, States will find it

more difficult to meet the self-sufficiency goal that is virtually required

by title I. Title II says turn waste control over to free enterprise. It sounds

like a good idea. However, title I says

if you do allow free enterprise to take

over, other States can close the market

to you. It is a catch-22 situation.

It is interesting to note that additional amendments are expected to further limit the free flow of trash over

State lines. Title I, the interstate restriction title, gives new powers that

conflict with the interstate commerce

clause to Governors that they have not

enjoyed since the Philadelphia case

was decided in 1972. Title II takes powers away from the States and municipalities that they enjoyed since the

1970’s, powers that they have used to

keep the trash flowing within their

States to local facilities.

My colleague from New Hampshire,

the chairman of the subcommittee on

Superfund, philosophically believes

that flow control is wrong, and I understand his position. But his position

conflicts with a concern of my Governor and many Governors who believe

that, after the last election, more authority would be put in their hands

rather than in the hands of Congress.

Limiting the bill as the sponsors

have intended has not been easy.

Since flow control has been a tool to

solve the waste disposal problems, the

States and towns across America have

been a laboratory of unique and creative solutions to their waste problems. These non Federal solutions to

the waste problem have led to

nonuniform statutes and nonuniform

problems that were inadvertently not

fixed by S. 534.

At subcommittee markup, over 50

amendments were filed. Changes were

accepted to respond to specific problems in five States. Two of those

States need additional clarifying language.

A colloquy was entered into for another State and one other State was

promised consideration before floor action. These seven State-specific amendments have one thing in common—each

of these States are represented by Senators who sit on the Environment and

Public Works Committee.

It is a complicated issue. I wish we

had been able to resolve these issues

before we got to the floor here. But it

was necessary to get this bill on the

agenda for all kinds of reasons and, as

a consequence, we are where we are.

But we still have a lot of work to do.

Because many States have delegated

waste control authorities to lower levels of government that do not employ

Washington counsel, many communities are still reviewing the committee’s reported product, still looking at

what is being offered. And we always

have that from the States when they

have an interest or when they have a

particular problem with a piece of legislation. They have not had time

enough yet to deal with it.

New situations that seem consistent

with the intent of the authors but not

exactly fitting the language of the bill,

are still being discovered.

Mr. President, flow control is not

necessary or even preferable for every

State. Each State is different. It has

its own unique needs. But this bill, as

written, is not acceptable by my Governor, Christine Todd Whitman, and

neither is it acceptable to many others.

As those who have been involved in the

flow control discussions over the years,

New Jersey has the most sweeping and

encompassing system and it has been a

success.

In the 1980’s, New Jersey’s environmental initiatives to close substandard

landfills drastically reduced the

State’s disposal capacity. New Jersey’s

waste quickly became a burden for

other States as the need to export our

waste grew.

The high cost and market volatility

associated with exporting waste triggered a garbage crisis and strained municipal resources. It was at this time

that elected officials of both parties in

New Jersey accepted the responsibility

to develop a solid waste management

system that would provide long-term

stability and ultimately, self-sufficiency.

‘‘Self-sufficiency’’ simply meaning

that we could take care of all of our

waste disposal needs within our State’s

borders. It could not happen overnight.

We tried to stop it when it came from

other places, and we were turned down

by the courts. As I have said now several times, we could not stand to have

our shifting of material suddenly cut

off from other States when now we are

an exporter.

It was clear to the State that other

States would not accept New Jersey’s

waste forever and Federal legislation

to eliminate waste exports was inevitable. To meet the goal of self-sufficiency, flow control laws have been in

place in New Jersey since 1979 and control all of the nonhazardous solid waste

in the State. Flow control has been a

significant part of New Jersey’s ability

to build an infrastructure, mostly landfills, to handle the 14 million tons of

solid waste requiring disposal annually.

Since 1988, exports of municipal solid

waste from New Jersey have decreased

50 percent. If the flow control authority from last year’s bill is included in

legislation that passes this body, New

Jersey will be self-sufficient by the

year 2000, only 5 years away.

New Jersey’s recycling programs are

also dependent on revenues received

from use of New Jersey waste management facilities. Today, New Jersey recycles over 53 percent of its waste.

Despite New Jersey’s system, it is

not a system that leaves out the private sector. The private sector has

built and operates most of the waste

facilities in the State. Through competitive bidding, the authorities within
May 10, 1995 CONGRESSIONAL RECORD — SENATE S6431

the State ensure services will be provided at the lowest cost. The collection, transportation, construction of

disposal facilities, and their operations, are all services for which bids

are sought.

Governor Whitman testified that

‘‘every major waste management firm

in America, and a laundry list of smaller waste companies, operate in New

Jersey today, and we are in the 17th

year of a flow control system. That is

not a Government monopoly.’’

Because of New Jersey’s unique system where all the wastes are now flow

controlled, without additional amendments, a waste crisis will inevitably

occur. Once part of our system is no

longer flow controlled, wastes will flow

out of State.

New, in-state replacement facilities

will be impossible to finance or justify

economically although the supply of

trash will be there, the trash will flow

out-of-state. Even BFI, the company

leading the fight against flow control,

acknowledges that new private facilities in the State would not be practical

without flow control, without the ability to direct where this trash flows.

Even without the recycling fees, it is

and will continue to be cheaper to

dump garbage in a landfill in Pennsylvania or other States than to handle

it anywhere in New Jersey. This is appealing, in the short term, for some of

the mayors and some of the communities and towns in New Jersey.

But the free market available over

the border is subject to governmental

closure by title I of this very bill.

Without flow control, what is now a decreasing waste problem will again become a garbage crisis. Without flow

control, communities will again give

their garbage to low-cost haulers and

hope it ends up in certified RCRA facilities, as opposed to being dumped

casually someplace in an unlicensed facility that they do not have control

over.

Without flow control, communities

will select haulers on the basis of only

one factor, and that is price. But all of

us know that the cheapest alternative

is not always the best or the legal one.

Without flow control, we will see

more illegal midnight dumping.

Mr. President, to protect my State, I

will be offering an amendment to protect the flow control system in existence in New Jersey. With this amendment, I can state that New Jersey will

not be sending garbage out-of-state

after the year 2000. We just need that

window of time to deal with it.

Another alternative is to not fix

State problems one by one, but to have

a generic fix that was the essence of S.

2345 last year.

Depending on the amendment process

we are going to be using in this debate,

I will be considering offering such

amendment based on that agreement

and which I introduced in this Congress

as S. 398.

Mr. President, the Governor of New

Jersey, Christine Todd Whitman, testified before the committee on this important issue. She said:

It has been argued by some, and may be

said again, that flow control legislation is at

odds with the goals and philosophy of the

new Congress. The contrary is true. A flow

control bill that ensures private sector competition while allowing local governments to

make long-term waste management plans is

entirely consistent with the goals of this

Congress. If Congress denies flow control authority to New Jersey, it essentially mandates that States like Pennsylvania and

Ohio take trash from my State, only because

land cost in those States are lower than in

New Jersey.

Mr. President, the interests of the exporting States and importing States

are not in conflict. New Jersey does

not want to send its waste out-ofState. It wants to be self-sufficient.

But to be self-sufficient, it needs to

protect its flow control system and it

needs several years to be totally selfsufficient. Without that protection, the

fears of the proponents of interstate restrictions, will be realized and wastes

will again flow out of states looking for

cheap places to send their garbage.

In March of this year, the National

Governors unanimously passed a resolution reaffirming a mutual commitment to each State’s management of

waste within its borders and endorsed

the use of flow control in the pursuit of

self-sufficiency.

Because title II is so much more restrictive that last year’s bill, it will be

necessary for New Jersey to send more

of its waste out-of-State. Unless title II

is corrected, I must strongly oppose

the existing title I and any amendments that further limit the State’s

options of going out of State.

Mr. President, I know that my dissertation just now does not compare

with some of the most important declarations delivered on the floor of the

U.S. Senate nor in this great city of

Washington. However, without

trivializing the problem, I just want to

make the case once more that it cannot exist both ways: We cannot say to

the States you are not allowed to control the flow of trash within your State

and, on the other hand, face the very

high risk of having a law created that

says, ‘‘Uh-uh, you can’t ship it to my

State or any other State that now or in

the future may import trash.’’

So we have to arrive at a balance.

That is what I have been saying

through that flood of words that I have

been issuing for the last 25 minutes or

so. The subject is not an easy one. It is

not a pleasant one. Garbage never is.

But the fact of the matter is that it is

our garbage and it is our problem and

there is not a State exempt from the

problem. Today’s importer may be tomorrow’s exporter, which we bitterly

discovered in the State of New Jersey

over 23 years ago.

So I hope that my colleagues in the

Senate will comply with our request to

give the States the authority that they

need to handle their garbage within the

State with the same authority they

will have to keep waste out of their

States.

With that, I yield the floor, and 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. 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.

PRIVILEGE OF THE FLOOR

Mr. LAUTENBERG. Mr. President, I

promise there will not be a second

speech similar to the one I just delivered. This is a simple request, Mr.

President. And that is, I ask unanimous consent that Douglas Johnson, of

Senator WELLSTONE’s office, and Jill

Schneiderman, of Senator DASCHLE’s

office, be given the privilege of the

floor during the consideration of S. 534.

The PRESIDING OFFICER. Is there

objection? Without objection, it is so

ordered.

Mr. LAUTENBERG. I thank the

Chair. I yield the floor and suggest the

absence of a quorum.

The PRESIDING OFFICER. The

clerk will call the roll.

The bill clerk proceeded to call the

roll.

Mr. DOLE. 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. DOLE. Mr. President, first, I remind my colleagues on both sides of

the aisle that S. 770 is still at the desk

and will be there until the close of

business today. If colleagues on either

side are interested in cosponsoring the

bill which would ultimately move the

embassy in Israel from Tel Aviv to Jerusalem, we hope you will take advantage and cosponsor the measure.

Second, we are on the Interstate

Transportation of Municipal Solid

Waste Act of 1995, and we have not

been on it long, only since about 1

o’clock. I know a lot of good opening

statements have been made. I understand there are a lot of amendments. I

urge my colleagues who may not be on

the floor, or their staffs who may be

listening in their offices, if Members

have amendments, we would like to

have some votes here this afternoon.

We would like to keep this bill moving.

I am tempted to file cloture on the

whole bill this afternoon and have a

cloture vote on Friday. I would rather

not do that. I would rather have Members come to the floor and offer their

amendments. But I am certain the

managers are here and they are prepared to do business. I know there is

one amendment under discussion now.

I have heard there are dozens and dozens of amendments. If we are going to

complete action on this bill by Friday,

we need to move quickly.

I say to all of my colleagues that if

you have an amendment, come to the
S6432 CONGRESSIONAL RECORD — SENATE May 10, 1995

floor and let us enter into a time agreement of 30, 40 minutes, whatever, and

dispose of some of these amendments

this afternoon. Senator SMITH is here,

Senator CHAFEE is here, Senator BAUCUS has been here, so I think you are

prepared to do business, right?

Mr. SMITH. Yes. If the majority

leader will yield, the majority leader is

correct. I think if the bill does not get

completed this week because these

amendments do not get offered, they

are jeopardizing the things we are trying to accomplish. We are here, and if

those who have amendments get them

here, we can finish this by this week.

Mr. DOLE. We may be on the budget

resolution as early as Tuesday of next

week. So the window is not very broad

here. This is important legislation that

affects everybody all over the country.

Tonight we cannot stay in as late as I

would like to because we have the Senate spouses annual dinner this evening.

We will have to probably stop about 7.

So tomorrow night we can go late and

late Friday afternoon.

I urge my colleagues again to cooperate and help us move the business of

the Senate so that we can move on to

something else.

Mr. WELLSTONE. Mr. President, I

wanted to say to the majority leader

and to the managers that I appreciate

wanting to move forward. We are trying to work out something on an

amendment right now. I think it is an

important piece of legislation. I hope

we are close.

I yield the floor.

Mr. DOLE. Mr. President, I suggest

the absence of a quorum.

The PRESIDING OFFICER. The

clerk will call the roll.

The assistant legislative clerk proceeded to call the roll.

Mr. BYRD. 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. 750

(Purpose: To clarify the continuation of flow

control authority where such authority

was imposed prior to May 15, 1994)

Mr. WELLSTONE. Mr. President, I

thank the Senator from West Virginia

for being kind enough to defer to me. I

am hoping that we will be able to go

forward with an amendment, if we can

do it in a very brief period of time. I

asked the Senator from West Virginia

for his permission to do so. I will wait

for a moment, if the Senator would be

patient.

Mr. President, I send an amendment

to the desk and ask for its immediate

consideration.

The PRESIDING OFFICER (Mr. JEFFORDS). The clerk will report.

The assistant legislative clerk read

as follows:

The Senator from Minnesota [Mr.

WELLSTONE] proposes an amendment numbered 750.

Mr. WELLSTONE. I ask unanimous

consent further reading be dispensed

with.

The PRESIDING OFFICER. Without

objection, it is so ordered.

The amendment is as follows:

On page 56, line 10, strike ‘‘is imposed’’ and

insert ‘‘had been exercised prior to May 15,

1994, and was being implemented on May 15,

1994,’’.

On page 56, line 12, insert ‘‘;’ after ‘‘subdivision’’ and strike ‘‘in effect on May 15,

1994’’.

On page 60, lines 4–5, strike ‘‘was in effect

prior to’’ and insert ‘‘such authority was imposed prior to May 15, 1994 and was being implemented on’’.

Mr. WELLSTONE. Mr. President, I

rise today to speak to a subject that is

of the greatest importance to many

communities in my State of Minnesota, and indeed to communities

across the country.

The topic is flow control, and particularly as it relates to S. 534, the

Interstate Transportation of Municipal

Solid Waste Act of 1995. For those Senators who may not be familiar with the

subject of flow control—although you

are likely to be very familiar with it

once we all finish with this bill—you

should take a moment and talk to the

people in your communities who are responsible every day of the week for

picking up the trash, finding a way to

dispose of it, and doing so in an affordable and ecologically sound manner.

People like Mr. Rob Dunnette, the

plant manager at the Olmstead County

Waste-To-Energy facility in Rochester,

MN.

Mr. President, in 1980 my State of

Minnesota, the cost of disposing of

solid wastes in municipal landfills was

on the rise * * * and the amount of

available landfill space was on the decline. ‘‘At that time,’’ says Mr.

Dunnette, ‘‘our landfills were filling

up, and there was a lot of material

going into landfills that shouldn’t

have.’’ The Minnesota State legislature

responded by passing the Solid Waste

Management Act of 1980, an act which

sought to give local communities the

tools they needed to deal with the

landfill problem. One of those tools was

the ability to take on for themselves

the authority to control the flow of

municipal solid waste. Says Mr.

Dunnette, ‘‘The Feds and the State

told us to do something different, do

something better * * * so we did.’’

Mr. President, what Olmstead County did was to adopt flow control. It obtained $27 million in municipal bonds

for the construction of three disposal

facilities—one for hazardous waste, one

for recyclables, and one to convert the

remaining solid waste into steam,

which was used to heat neighboring

buildings and generate electricity.

The entire plan was based on what

the State and Federal Government had

been encouraging communities to do

for years—namely, to adopt flow control authority to integrate and consolidate the disposal of municipal solid

wastes.

And it worked. In fact because of the

many counties—like Olmstead County—that began to engage in flow control, my State of Minnesota became a

national example of how flow control

could be an effective tool in managing

our local solid waste streams in an economically and ecologically sound manner.

That is until May 15, 1994, when the

U.S. Supreme Court ruled that flow

control authority was unconstitutional

unless explicitly granted by Congress.

This is largely why all of us are here on

the floor today, talking about flow control.

Mr. President, the issue is simple.

The bill before us today, as it is written, excludes many Minnesota communities that have floated millions of dollars in municipal bonds to build facilities under the presumption that they

could engage in flow control. But there

is a solution to this problem.

Mr. President, I have prepared an

amendment, which would ensure that

all of the Minnesota counties that had

engaged in flow control and had invested money into facilities would be

allowed to continue doing so. It clears

up a possible misunderstanding, and I

thank my colleagues for accepting it.

Let us be clear: My amendment

would not authorize flow control for

any new communities. Some communities have had good experience with

it; clearly, however, it is not right for

everyone. What I am saying is that this

is a decision that should not be made

here in Washington, but rather in the

communities directly affected.

My amendment would not require

anybody to use flow control. It would

only allow those that had been encouraged to engage in flow control since

1980 by the State and Federal Governments, to continue to do so. However

without my amendment, millions upon

millions of dollars in municipal bonds

in Minnesota could be put at risk. As

Mr. Dunnette said, ‘‘We’re 8 years into

our 20-year bond * * * without this fix,

it is possible, if not probable, that we

may default on those bonds.’’

Mr. President, it is as simple as that.

If ever there was a clear example of a

States-rights issue, this is it. We need

to address this issue now, but we need

to do so in a manner that is responsive

to our communities. Our communities

are telling us loud and clear what they

need. I hope my colleagues will listen

to them.

Mr. President, this is an amendment

that really just clears up a possible

misunderstanding. I thank the Senator

from Rhode Island, the Senator from

Montana, and the Senator from New

Hampshire for accepting this amendment.

This amendment makes it clear that

when a county has gone forward with

its own flow control, has bonded, and is

implementing this, that they clearly

will be covered by this bill. I believe

the managers have accepted this

amendment.

Mr. CHAFEE. Mr. President, the Senator from Minnesota is correct, this is

acceptable to this side.
May 10, 1995 CONGRESSIONAL RECORD — SENATE S6433

The PRESIDING OFFICER. The

question is on agreeing to the amendment.

The amendment (No. 750) was agreed

to.

Mr. CHAFEE. I move to reconsider

the vote.

The PRESIDING OFFICER. The

Chair, in his capacity as a Senator

from Vermont, makes a motion to lay

that amendment on the table.

The motion to table is agreed to.

Mr. WELLSTONE. Mr. President, I

again would like to thank my colleagues.

This was, for a good many counties

in Minnesota, a very, very important

question. For all Senators, whether

Democrats or Republicans, it always

feels good to come through for people

in your State. I worked hard at this. I

thank my colleagues for their cooperation. I yield the floor.

UNITED STATES ACTION ON

JAPAN TRADE

fMr. BYRD. Mr. President, I thank

the Chair.

Mr. President, our United States

Trade Representative, Ambassador

Kantor, this morning announced a pair

of initiatives regarding our trade relations with Japan for which he is to be

commended and which deserve the

strong support of this body.

With respect to the first initiative,

Ambassador Kantor has announced a

plan to impose trade sanctions under

section 301 of the Trade Act, pursuant

to an investigation into the Japanese

auto parts aftermarket. On this issue,

this body has already spoken decisively

by agreeing to a resolution offered on

yesterday by the two leaders and myself, and the vote was 88–8. The Senate,

thereby, decisively supports the imposition of such sanctions, given the complete unwillingness of the Japanese to

address their market closing practices

which block access of the United

States parts to Japanese consumers.

This has resulted in persistent, large

trade deficits which are unfair to our

industries and cost tens of thousands of

jobs every day.

The Trade Representative is on solid

ground to publish a proposed retaliation list under section 301.

Regarding the second initiative, the

Trade Representative has also announced his intention to take a broad

case against Japan’s automotive practices before the World Trade Organization [WTO] by invoking the dispute

settlement mechanism. As stated in his

letter to the new Director General of

the WTO, the case will be based on the

fact that ‘‘Japan has failed to carry

out its obligations under the WTO’’ and

thereby ‘‘nullified and impaired benefits accrued to the United States under

the WTO’’, and ‘‘impedes the attainment of important objectives of the

GATT and the WTO.’’

As my colleagues are aware, in the

debate last December over America’s

accession to the new WTO system, the

question of the impact on United

States sovereignty by creating binding

decisionmaking dispute settlement

bodies in that organization was discussed. In fact, it seems clear that

some other nations were quick to sign

up to the WTO, specifically in order to

attack United States trade laws.

In testimony before the Senate Finance Committee today, a former United States trade negotiator, Alan Wolff,

stated with respect to the context of

negotiations creating the WTO,

Our negotiators should have begun to recognize that there was something suspect

about the U.S. proposal for an automatically

binding system when the rest of the parties

to the negotiation made an about face and

embraced it. They thought that they were

curbing America’s ability to act under section 301.

So, some opinion has been expressed

that it would be risky to go before the

WTO in that a dispute settlement panel

could rule against United States 301 action in imposing new retaliatory tariffs

on Japanese products.

But the question is, what is in the

national interest of the United States?

Let us keep our eye on the ball. The

case of Japanese discrimination on a

very persistent and massive scale has

been clear for many years in the automotive market as well as in other markets. No serious person can take issue

with this.

I commend the approach taken by

Ambassador Kantor. There should be a

good case against Japanese automotive

industry barriers before the WTO because they are so overwhelming—Japanese practices overwhelm tariff schedules and make them irrelevant to the

real dynamics of the market. If there is

not a winnable case, I, for one, would

suspect something deeply flawed with

WTO decisionmaking and not the United States’ case. Let me say that again:

If there is not a winnable case, then I,

for one, would suspect something deeply flawed with the World Trade Organization decisionmaking and not something flawed about the United States’

case.

The U.S. Trade Representative has

maintained consistently that the operation of section 301 as a bilateral mechanism regarding specific barriers and

practices is completely appropriate at

the same time that we also attempt to

breathe life into the new WTO dispute

system. WTO rules do not cover the

complete range of barriers that are

practiced by the Japanese and, therefore, 301 treatment is totally appropriate in many instances. Furthermore, as a general matter, it certainly

appears reasonable to believe that if

Japanese practices nullify the value to

be gained from the tariff-lowering regime of the GATT, then the United

States should prevail in a World Trade

Organization dispute.

The Trade Representative has established a two-track approach taking the

initiative before the WTO and exercising our bilateral rights under our trade

law. I do not see any inconsistency in

this approach. It is the right approach

because our practices in our market

are transparent and open, while Japan’s practices are not. Thus, it is a

fair challenge to the WTO to recognize

and act on the reality of the market

situation.

Mr. President, I ask unanimous consent to have printed in the RECORD the

letter sent yesterday from Ambassador

Kantor to the new Director General of

the WTO, Mr. Renato Ruggerio, which

gives prefiling notification of the intention of the United States to initiate

a WTO challenge against Japanese

automotive discrimination. In addition, I also ask unanimous consent to

include an op-ed piece from today’s

Washington Post by the vice chairman

of the Chrysler Corp., Mr. Thomas G.

Denomme, outlining in detail problems

that Chrysler has experienced in attempting to break into the Japanese

market.

There being no objection, the material was ordered to be printed in the

RECORD, as follows:

EXECUTIVE OFFICE OF THE

PRESIDENT,

U.S. TRADE REPRESENTATIVE,

Washington, DC.

RENATO RUGGIERO,

Director-General, World Trade Organization,

Geneva, Switzerland.

DEAR DIRECTOR-GENERAL: I am writing you

today to give pre-filing notification of the

intention of the United States to invoke the

dispute settlement mechanism of the WTO to

challenge the discrimination against United

States and other competitive foreign products in the market for automobiles and automotive parts in Japan. It is our intention to

officially file a case with the World Trade

Organization (WTO) in approximately 45

days.

Through its actions and inactions with respect to the automotive sector, Japan has

failed to carry out its obligations under the

WTO, has nullified and impaired benefits accruing to the United States under the WTO,

and has fostered a situation in the automotive sector that nullifies and impairs such

benefits, and impedes the attainment of important objectives of the GATT and the

WTO.

The market access problems in the automotive sector reflect problems endemic in

many sectors in Japan. Relative to gross domestic product, Japan imports far fewer

manufactured goods than any other G–7

country and maintains a persistent surplus

in its global trade and current accounts. Japan’s imports of manufactured goods are

one-fifth to one-tenth the level of European

countries and nearly one-third the level of

the United States, relative to GDP. Overregulation, toleration of market restrictive

practices and market structures, and pervasive and unwarranted intervention in the

Japanese economy all work together to systematically discriminate against foreign

competitive imports.

The United States has focussed on the

automotive sector because of its central importance to the United States and other

economies, and its huge contribution to the

U.S.-Japan trade imbalance. This sector accounts for almost 5 percent of the U.S. GDP,

and it directly provides jobs for 2.5 million

Americans. The 1994 U.S.-Japan trade imbalance in the automotive sector was $37 billion, nearly 60 percent of the total U.S. trade

deficit with Japan and nearly a quarter of

the entire U.S. global trade deficit.