S6418 CONGRESSIONAL RECORD — SENATE May 10, 1995

revenue bonds that were issued for the construction of solid waste management facilities to which the political subdivision’s

waste was designated.

‘‘(f) RETAINED AUTHORITY.—

‘‘(1) REQUEST.—On the request of a generator of municipal solid waste affected by this

section, a State or political subdivision may

authorize the diversion of all or a portion of

the solid waste generated by the generator

making the request to an alternative solid

waste treatment or disposal facility, if the

purpose of the request is to provide a higher

level of protection for human health and the

environment or reduce potential future liability of the generator under Federal or

State law for the management of such waste,

unless the State or political subdivision determines that the facility to which the municipal solid waste is proposed to be diverted

does not provide a higher level of protection

for human health and the environment or

does not reduce the potential future liability

of the generator under Federal or State law

for the management of such waste.

‘‘(2) CONTENTS.—A request under paragraph

(1) shall include information on the environmental suitability of the proposed alternative treatment or disposal facility and

method, compared to that of the designated

facility and method.

‘‘(g) LIMITATIONS ON REVENUE.—A State or

political subdivision may exercise flow control authority under subsection (b), (c), or (d)

only if the State or political subdivision certifies that the use of any of its revenues derived from the exercise of that authority will

be used for solid waste management services.

‘‘(h) REASONABLE REGULATION OF COMMERCE.—A law, ordinance, regulation, or

other legally binding provision or official act

of a State or political subdivision, as described in subsection (b), (c), or (d), that implements flow control authority in compliance with this section shall be considered to

be a reasonable regulation of commerce retroactive to its date of enactment or effective

date and shall not be considered to be an

undue burden on or otherwise considered as

impairing, restraining, or discriminating

against interstate commerce.

‘‘(i) EFFECT ON EXISTING LAWS AND CONTRACTS.—

‘‘(1) ENVIRONMENTAL LAWS.—Nothing in

this section shall be construed to have any

effect on any other law relating to the protection of human health and the environment or the management of municipal solid

waste or recyclable material.

‘‘(2) STATE LAW.—Nothing in this section

shall be construed to authorize a political

subdivision of a State to exercise the flow

control authority granted by this section in

a manner that is inconsistent with State

law.

‘‘(3) OWNERSHIP OF RECYCLABLE MATERIAL.—

Nothing in this section—

‘‘(A) authorizes a State or political subdivision of a State to require a generator or

owner of recyclable material to transfer recyclable material to the State or political

subdivision; or

‘‘(B) prohibits a generator or owner of recyclable material from selling, purchasing,

accepting, conveying, or transporting recyclable material for the purpose of transformation or remanufacture into usable or

marketable material, unless the generator or

owner voluntarily made the recyclable material available to the State or political subdivision and relinquished any right to, or

ownership of, the recyclable material.

‘‘(j) REPEAL.—(1) Notwithstanding any provision of this title, authority to flow control

by directing municipal solid waste or recyclable materials to a waste management facility shall terminate on the date that is 30

years after the date of enactment of this

Act.

‘‘(2) This section and the item relating to

this section in the table of contents for subtitle D of the Solid Waste Disposal Act are

repealed effective as of the date that is 30

years after the date of enactment of this

Act.’’.

SEC. 203. TABLE OF CONTENTS AMENDMENT.

The table of contents for subtitle D in section 1001 of the Solid Waste Disposal Act (42

U.S.C. prec. 6901), as amended by section

101(b), is amended by adding after the item

relating to section 4011 the following new

item:

‘‘Sec. 4012. State and local government

control of movement of municipal solid waste and recyclable

material.’’.

TITLE III—GROUND WATER MONITORING

SEC. 301. GROUND WATER MONITORING.

(a) AMENDMENT OF SOLID WASTE DISPOSAL

ACT.—Section 4010(c) of the Solid Waste Disposal Act (42 U.S.C. 6949a(c)) is amended—

(1) by striking ‘‘CRITERIA.—Not later’’ and

inserting the following: ‘‘CRITERIA.—

‘‘(1) IN GENERAL.—Not later’’; and

(2) by adding at the end the following new

paragraph:

‘‘(2) ADDITIONAL REVISIONS.—Subject to

paragraph (2), the requirements of the criteria described in paragraph (1) relating to

ground water monitoring shall not apply to

an owner or operator of a new municipal

solid waste landfill unit, an existing municipal solid waste landfill unit, or a lateral expansion of a municipal solid waste landfill

unit, that disposes of less than 20 tons of municipal solid waste daily, based on an annual

average, if—

‘‘(A) there is no evidence of ground water

contamination from the municipal solid

waste landfill unit or expansion; and

‘‘(B) the municipal solid waste landfill unit

or expansion serves—

‘‘(i) a community that experiences an annual interruption of at least 3 consecutive

months of surface transportation that prevents access to a regional waste management facility; or

‘‘(ii) a community that has no practicable

waste management alternative and the landfill unit is located in an area that annually

receives less than or equal to 25 inches of

precipitation.

‘‘(3) PROTECTION OF GROUND WATER RESOURCES.—

‘‘(A) MONITORING REQUIREMENT.—A State

may require ground water monitoring of a

solid waste landfill unit that would otherwise be exempt under paragraph (2) if necessary to protect ground water resources and

ensure compliance with a State ground

water protection plan, where applicable.

‘‘(B) METHODS.—If a State requires ground

water monitoring of a solid waste landfill

unit under subparagraph (A), the State may

allow the use of a method other than the use

of ground water monitoring wells to detect a

release of contamination from the unit.

‘‘(C) CORRECTIVE ACTION.—If a State finds a

release from a solid waste landfill unit, the

State shall require corrective action as appropriate.

‘‘(4) REMOTE ALASKA NATIVE VILLAGES.—

Upon certification by the Governor of the

State of Alaska that application of the requirements of the criteria described in paragraph (1) to a solid waste landfill unit of a

Native village (as defined in section 3 of the

Alaska Native Claims Settlement Act (16

U.S.C. 1602)) would be infeasible, would not

be cost-effective, or is otherwise inappropriate because of the remote location of the

unit, the unit shall be exempt from those requirements.’’.

(b) REINSTATEMENT OF REGULATORY EXEMPTION.—It is the intent of section 4010(c)(2) of

the Solid Waste Disposal Act, as added by

subsection (a), to immediately reinstate subpart E of part 258 of title 40, Code of Federal

Regulations, as added by the final rule published at 56 Federal Register 50798 on October

9, 1991.

Mr. DOLE. Mr. President, I understand the distinguished Democratic

leader wants to speak for a few moments on product liability, and so he

will be here momentarily. But I would

say, as we start S. 534, keep in mind it

came out of the committee by a vote of

16 to 0. And I hope this is something we

can complete before the week is out,

sometime by late Friday afternoon. I

know there are amendments. We can

dispose of amendments. But I hope that

in many cases the amendments can be

resolved by agreement, by working

them out. And I know we have reasonable managers on both sides of the

aisle.

This is important legislation, and I

am happy to have it before the Senate.

I hope we can complete action on it before the week is out because next week

we will go to the budget and, hopefully,

following that to telecommunications.

So we have our next 2 or 3 weeks laid

out for us before a very brief Memorial

Day recess.

I will also be sending a letter to Senator DASCHLE today with reference to

the August recess, and unless we can

reach some accommodation, I then will

announce in the next week whether or

not there will be an August recess and,

if so, the length of that recess.

Mr. CHAFEE. I wonder if the leader

would yield to a question.

I heard the ominous words ‘‘a very

brief Memorial Day recess.’’ What does

that mean?

Mr. DOLE. It is a week.

Mr. CHAFEE. That is fine.

Mr. DOLE. It may be longer than the

August recess.

Mr. CHAFEE. 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. DASCHLE. 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. DASCHLE. Mr. President, I want

THE PRODUCT LIABILITY BILL

fto commend so many Senators on both

sides of the aisle for their efforts over

the last couple of weeks on product liability. This has been a vigorous debate, and a debate that obviously has

required a good deal of compromise and

concession on both sides.

I believe there was another opportunity that we could have had to reach

greater consensus on the bill, and I am

sorry we missed that opportunity in

the final days of this debate.

But I do believe that as a result of

the decisions made by this body over
May 10, 1995 CONGRESSIONAL RECORD — SENATE S6419

the last couple of weeks, the message

ought to be very clear. The message is

this: Members of the Senate are not

willing to accept the extreme measures

that have been proposed by the House.

If those more extreme measures are

added to the bill in conference, it is

very unlikely that anything will ultimately pass.

It is critical, as we look to the conference report, that we keep this bill

modest, that we not load it up with expansionist amendments, that we seek

to ensure that what has been passed is

all that comes back to the Senate.

I will say unequivocally that I believe this legislation will again be in

trouble if it comes back vastly different from what it is right now. Many

of us felt very strongly we could have

improved upon this bill, especially

with regard to punitive limits and with

regard to the limitations on joint and

several liability. For many of us who

opposed the bill, there were provisions

that we supported and would have

liked to have been able to vote for, but,

unfortunately, we could not resolve the

issues that, in our view, were still too

onerous to support.

But let me say, in spite of the fact

that there was a very strong vote, that

vote is directly dependent upon the degree to which the more extreme measures that were initially added are kept

off the bill. We do not want to see them

when this comes back. We will continue to fight this in a consequential

way if they do come back, and I hope

that that message was loud and clear.

I was very pleased with the comments made by both Senators ROCKEFELLER and GORTON yesterday as they

commented about what they expect to

see in conference. Senator GORTON said

that he does not think there is one

semicolon that is negotiable, and I

think that is an accurate reflection of

where the Senate stands.

So, indeed, we passed a piece of legislation today that may reflect the views

of three-fifths of the Senate, but I

think that it is a very tenuous victory,

depending upon what may or may not

occur in the conference report. So we

look to that at some point in the future. But I must say that while those

on both sides of the aisle who supported the legislation can claim victory, I think it is also important that

they appreciate how tenuous that victory is and how important it is that we

come back to the floor with something

meaningful, something narrow and focused, and something that directly addresses the concerns raised on this

floor for the last 2 weeks.

With that, I yield the floor.

Mr. CHAFEE addressed the Chair.

The PRESIDING OFFICER. The Senator from Rhode Island.

SIXTY VOTES NEEDED ON

CONTROVERSIAL ISSUES

fMr. CHAFEE. Mr. President, I would

also say to the distinguished Democratic leader, it appears around here if

there is anything controversial now,

you need 60 votes to get it passed. Not

a 51 vote margin, 51 to 49, it has to be

60 votes if the legislation is controversial; something new in the life of the

Senate, but not entirely new, I will say

that.

INTERSTATE TRANSPORTATION OF

MUNICIPAL SOLID WASTE ACT

fThe Senate continued with the consideration of the bill.

Mr. CHAFEE. Mr. President, I call up

S. 534.

The PRESIDING OFFICER. It is the

pending business.

Mr. CHAFEE. Mr. President, I join

with the Senator from New Hampshire,

Senator SMITH, in presenting S. 534 to

the Senate. This is legislation dealing

with interstate waste and flow control

authority.

I want to acknowledge Senator

SMITH’s efforts as chairman of the Environment and Public Works Committee’s Subcommittee on Superfund,

Waste Control, and Risk Assessment.

Senator SMITH has taken the lead in

drafting this legislation, targeting issues that went unresolved last year.

I also want to acknowledge the work

of the distinguished ranking member of

our committee, Senator BAUCUS, for

his help in the framing of this legislation which we will now be discussing

over the next day or so.

Mr. President, this legislation is

straightforward and attempts to deal

with the issues of interstate waste and

flow control, balancing the interests of

the States that import waste, trash

that comes into States for disposal,

and the exporters, States that do not

have landfills or incinerators and thus

ship it out. We try to deal with communities with outstanding revenue

bonds as they deal with the issues of

construction of waste facilities the

local individual who dispose of his or

her garbage.

This bill includes three titles. Title I

deals with interstate waste and is similar to the bill approved by the Senate

last year. I would like to stress that.

The interstate waste portion is one

that was approved unanimously by this

Senate last year.

Title II focuses on flow control,

which we will discuss in a few minutes.

And title III reinstates the ground

water monitoring exemption for small

landfills in the municipal solid waste

landfill criteria.

Let me turn to title I. This is a very

contentious area. Indeed, I guess we

have dealt with this, on and off, over

the past 5 years. And no one has been

more ardent in trying to get this problem solved than the distinguished Senator from Indiana, Senator COATS.

Now, on interstate shipments, the

bill before us, as I say, is similar to S.

2345, which was approved unanimously

last year by the Senate.

I want to make it clear that the bill

before us deals exclusively with the

transport, across State borders, of municipal solid waste. That is what we are

talking about. We are not talking

about restrictions on hazardous waste

or industrial waste or even construction and demolition debris. Those

items involve an entirely different set

of problems and would require different

approaches than we are dealing with

here.

We are dealing here with municipal

solid waste, sometimes referred to as

MSW; what the rest of us, in layman’s

terms, would call garbage or trash.

Specifically the bill provides the following. There is an import ban. A Governor may, if requested by the affected

local community, as designated by the

Governor, ban out-of-State municipal

solid waste at landfills or incinerators

that did not receive out-of-State waste

in 1993.

Now, this gets a little bit complicated, but these are provisions that

we have worked out with Governors

and municipalities, particularly the

ones that cross borders.

So the first point is there can be an

import ban that the Governor can impose, if he is requested by a local community and if that community did not

receive out-of-State waste in 1993. Or

he can impose this same ban at those

facilities that received municipal solid

waste in 1993 but are not in compliance

with applicable Federal or State standards. So there is a power in the Governor. Now that is an import ban.

Further, a Governor may unilaterally freeze out-of-State waste at 1993

levels at landfills and incinerators that

received waste during 1993 and are in

compliance. In other words, the Governor can put a clamp on limiting it to

the amount that came in in 1993, at

those levels.

Now, there is an export ratchet, likewise. A Governor may unilaterally ban

out-of-State waste from any State exporting more than 3.5 million tons in

1996. This declines to 3 million tons in

1997 and 1998, drops to 2.5 million tons

in 1999 and the year 2000, 1.5 million

tons in the year 2001 and 2002, and 1

million tons in 2003 and every year

thereafter. So the Governor has this

power to ban out-of-State waste coming from a State that is exporting very

substantial amounts. That is the power

in the importing State Governor.

There is also another ratchet. A Governor may unilaterally restrict out-ofState waste imported from any one

State in excess of certain levels.

There is a cost recovery surcharge

provision. States that imposed a differential fee on the disposal of out-ofState waste on or before April 3, 1994,

are allowed to impose a fee of no more

than $1 per ton.

So there is that $1-per-ton limitation, a differential that a State can impose, as long as the differential fee is

used to fund solid waste management

programs.

What we are dealing with all through

here are the limitations that are imposed by the commerce clause of our

Constitution. The bill we are dealing