May 11, 1995 CONGRESSIONAL RECORD— SENATE S6477 

not only an economically free and viable leader of the world but also that 

keeps us free. 

In conclusion, I wish to again praise 

the chairman. He presented a responsible budget resolution, and I pledge to 

work with the Budget Committee and 

all my colleagues to make sure we do 

those things that are necessary and do 

away with those things, those frills at 

this time in our history that we cannot 

afford just because we like to say we 

have them. 

So I wish to work with the chairman 

and this body in producing a budget 

that will work for all Americans. 

Mr. President, I yield the floor and I 

note 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the quorum call be rescinded.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. 

f 

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the quorum call be rescinded.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-ofthe-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 

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S6478 CONGRESSIONAL RECORD— SENATE May 11, 1995 

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. ll. 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 

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May 11, 1995 CONGRESSIONAL RECORD— SENATE 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 FreeTrade 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 

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S6480 CONGRESSIONAL RECORD— SENATE May 11, 1995 

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-ofState 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 wasteflow 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 

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May 11, 1995 CONGRESSIONAL RECORD— SENATE 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 wasteflow-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 

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S6482 CONGRESSIONAL RECORD— SENATE May 11, 1995 

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: 

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May 11, 1995 CONGRESSIONAL RECORD— SENATE 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 selfsufficient. 

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 

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S6484 CONGRESSIONAL RECORD— SENATE May 11, 1995 

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 

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May 11, 1995 CONGRESSIONAL RECORD— SENATE 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 farreaching 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. 

f 

SCHOOL BUS SAFETY 

Mr. DEWINE. Mr. President, a few 

weeks ago on this Senate floor I discussed the problem of school bus safety. In February of this year a young 

girl by the name of Brandie Browder, 

an eighth grader in Beaver Creek, OH, 

was killed when the drawstring around 

the waist of her coat got caught in the 

handrail of her school bus. 

Just 4 days later, in Cincinnati, a 

seventh grader suffered a broken foot 

in a very similar accident. 

As I pointed out when I spoke previously about this matter, while school 

buses are certainly among the very 

safest modes of transportation, the sad 

fact remains that an average of 30 

schoolchildren are killed every single 

year in America either getting off or 

getting back on their own school 

buses—30 children. 

Each child, Mr. President, with parents, grandparents, brothers, and sisters, and because of that child’s death 

their life will never be the same; 30 

children who will never have the opportunity to grow up, 30 children who will 

never have the opportunity to live out 

their potential. The sad fact is, Mr. 

President, that almost without exception these are preventable deaths. 

When I last spoke on this issue, I discussed three specific safety issues, 

three problems that cause these 

deaths. One was a handrail problem. 

The second was the problem of the 

child getting on and off the bus and 

how we can make that area safer so the 

school bus driver will know what is 

going on in that area. And finally, I 

talked about the possibility of better 

training for school bus drivers. 

Today, I would like to concentrate on 

the issue of handrails on these school 

buses because between the time that I 

last spoke to the Senate about this 

issue myself and my staff have spent a 

great deal of time looking at this issue 

and finding out additional facts. And 

the sad fact is that we lose many children because of this handrail problem. 

This is a problem, Members of the 

Senate, that can be corrected very easily for less than $20 per school bus. So 

it is not something that is going to 

cost a great deal of money. It is something though that will not be fixed unless parents, teachers, administrators, 

and members of the public demand that 

this problem be fixed in each school 

bus in the country. 

As I previously mentioned, an alarming number of these accidents are occurring when a strap from a backpack 

on a child or the drawstring of a little 

girl’s or little boy’s coat gets snagged 

in the handrail while that child is 

exiting the bus. We all know I think 

from our own experience from our own 

children how many kids today have 

backpacks or have a poncho or something that has a string that can in fact 

get caught as that child is getting off 

the bus. 

Mr. President, with many of these 

handrails there is a small space between the handrail and the wall of the 

bus where something like the 

drawstring around the waist of a coat 

can get snagged. The child is getting 

off the bus. The child begins to get off 

that bus but the child’s clothing is 

stuck and is still attached when the 

bus driver mistakenly begins to pull 

away thinking the child has exited the 

school bus. As I pointed out, a number 

of children have been killed in this 

exact manner since 1991. 

Let me give a little background on 

the analysis of this problem. Beginning 

in early 1993, the National Highway 

Traffic Safety Administration 

[NHTSA] initiated a series of investigations to find out if the handrails on 

school buses were actually designed in 

an unsafe manner. As a result of these 

investigations, nine distinct models of 

school buses were recalled because of 

potentially unsafe handrails. However, 

tens of thousands of these unsafe buses 

were not recalled. They are still on the 

road. The bus that killed little Brandie 

was not recalled, not because the bus 

was safe—just the contrary—but it was 

not recalled because the company that 

made the bus had already gone out of 

business. 

Mr. President, we clearly must track 

down these buses. We must make sure 

that every single bus in this country is 

inspected. We have to fix them or get 

them off the road. 

Let me again repeat. We are not talking about a very expensive repair. It is 

not a cost question. It is a question of 

locating the buses. It is a question of 

public awareness, which is why I am on 

the floor today. 

We as parents need to make sure our 

children are not getting on an unsafe 

bus this afternoon, tomorrow morning, 

or ever. We can all look for ourselves. 

When our child gets on the bus tomorrow morning, or gets off the bus this 

afternoon, look at the handrail to see if 

that gap does in fact exist. We must 

not rest until every one of these buses 

is identified and fixed. 

Let me advise my colleagues what we 

are doing in the State of Ohio with regard to this. I had the opportunity this 

morning to talk to highway patrol officials who are in charge in the State of 

Ohio of school bus inspections. 

As I have indicated, there really is a 

simple solution to this particular handrail problem. Every year the Ohio 

State Highway Patrol during the summer months when school is not in session conduct inspections of every single school bus in the State of Ohio. I 

suspect that there are other law enforcement agencies that perform the 

same function in all the other States of 

the Union as well. 

The Ohio State Highway Patrol, 

when they begin these inspections in 

the next several weeks, are going to in 

addition to what they normally do look 

for this specific problem. When they 

find the problem, if they do, they are 

going to take the bus off the road until 

the problem is corrected because as I 

indicated it is a very relatively simple 

problem to solve at a cost of probably 

no more than $20. 

They use an inspection device, a tool. 

If I describe it, I think it will give our 

listeners and Members of the Senate a 

good idea how simple it is. It is a tool 

made with a long string with a nut attached to the end. From outside the 

school bus door, you drop the nut end 

of the device into the crevice where 

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