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
S6420 CONGRESSIONAL RECORD — SENATE May 10, 1995

with today explicitly prohibits a Governor from limiting or prohibiting

solid waste imports to landfills or incinerators that have a host community

agreement to receive out-of-State

waste.

In addressing the problem of interstate waste, I, as chairman, and Senator SMITH, likewise as chairman of the

subcommittee, have tried to find a solution that will reduce unwanted imports yet give exporting States some

time to reduce the amount of waste

generated, to increase recycling, and to

site new in-State capacity.

What we are trying to do is to take

into account the large exporting

States’ problems, but we are not going

to let them export forever.

What can they do? As I say, they can

reduce the amount of waste generated,

they can increase recycling, and they

can set up their own sites in their

States to deal with the problem—incinerators, landfills, or whatever they

might be.

Title II deals with what is known as

flow control. Flow control refers to the

legal authority of States or local governments to designate where waste

must be taken for processing or treatment or disposal. Over the past 20

years, State and local governments

have used flow control as a financing

mechanism for the development of municipal solid waste disposal facilities.

What am I talking about? I am talking about incinerators and landfills, for

example. A municipality says, ‘‘We

have to have an incinerator to take

care of the waste within our municipality.’’ So they say, ‘‘Well, we’ll build

one. And where do we get the money?

We issue bonds. All right, but how are

we going to make certain that we are

going to have the waste flowing in and

the so-called tipping fees?’’ So the municipality passes an ordinance which

says: Everybody in this municipality

must take trash to this central facility, and there they pay a tipping fee

and you are not allowed to ship it elsewhere. BFI or other commercial firms

cannot come in and say, ‘‘I’ll take your

waste for a lower price.’’ No.

The way it works is the locals say

you can only take it here, because that

is the way we can pay off our bonds.

Flow control guarantees that a projected amount of waste will be received

at a designated waste facility. Thus, a

predictable revenue stream is generated for the retirement of the cost of

the facility, the capital cost, and the

operating expenses.

Flow control, as you can see, distorts

the waste market by creating State or

municipally controlled waste monopolies. Obviously, it becomes a monopoly.

If the city of St. Louis says that no

trash can be taken elsewhere but to the

city incinerator, that is a monopoly.

But the city of St. Louis might say,

well, we spent a lot of money to build

this incinerator and the only way we

can pay off our bonds is with a guarantee flow from our municipality so when

the big trucks, private trucks pick up,

they can only take it to the city of St.

Louis incinerator.

Communities across the country

have made investments predicated on

flow control, but I, and likewise Senator SMITH and Senator BAUCUS, do not

believe in perpetuating that kind of

system into the future. Designating

where waste must go will only drive up

the cost of waste disposal for our citizens.

Not unlike the interstate transport

of municipal solid waste and its implications on interstate commerce, flow

control has emerged as a controversial

legislative issue because of several recent Federal court decisions. Over the

past 5 years, Federal courts have ruled

that flow control laws in no fewer than

four States violate the commerce

clause of the U.S. Constitution. Similar to restrictions on interstate waste,

flow control undermines the commerce

clause by barring States and political

subdivisions by placing undue burdens

on interstate commerce.

This case all came up May 16, 1994,

just a year ago. It was called the

Carbone case, Carbone versus Town of

Clarkstown, NY, which the Supreme

Court decided just a year ago. The Supreme Court’s ruling in the Carbone

case has made it clear that absent congressional action, the exercise of flow

control by States and political subdivisions is unconstitutional; it interferes

with interstate commerce. The city of

St. Louis no longer can say to all its

citizens, ‘‘You must bring your trash to

this central facility.’’ That is interfering with interstate commerce and is

unconstitutional, unless Congress decides otherwise.

So we are here today to override the

constitutional provisions on State laws

that interfere with interstate commerce and so as to provide new authority to the States. We are beset with

communities, such as the illustrative

one I gave of St. Louis, that has invested substantial sums of money in

their incinerators and are counting on

paying off those bonds through the fees

that come in and suddenly the whole

ground rules are changed by the Supreme Court decision. So they come to

us and say, ‘‘Grandfather us. We issued

those bonds dependent upon this flow

of trash.’’

The Supreme Court has said Congress

can do this. We can provide new authority to the States by declaring that

the impact of such laws on interstate

commerce is reasonable.

Should we move in this direction? I

say yes, but a qualified yes. We should

tread carefully, and this bill does that.

This Senator believes that Congress

was granted the power to regulate commerce in order to ensure the free flow

of goods and to protect against economic warfare among the States. We

must not create a system that builds

walls around our States and our communities. The economy of our country

has been successful over the past 200

years because of the free flow of goods

and services among our States. Let us

not go overboard today loading up this

bill with discriminatory amendments.

Unnecessarily restricting the interstate transport of waste and providing

unlimited flow control will limit competition in the waste market. It will

discourage the selection of less costly

waste disposal options, and it will force

duplicative infrastructure investments

in our communities.

The intention of the bill before us

today is to provide States and political

subdivisions with flow control authority in order to meet financial obligations with respect to solid waste management facilities and to maintain

their creditworthiness.

Title II provides limited flow control

authority under certain conditions to

States and subdivisions that have embarked on these commitments, these

financial investments that, rightly or

wrongly, were predicated on the expectation or implementation of flow control. They built these facilities and issued the bonds believing that what

they were doing was right, was legal

and was dependent upon restricting

where the trash within their communities could go. It could only come to

the municipal landfill or incinerator.

We are not, in grandfathering these

provisions, reflecting any position on

the appropriateness of flow control as a

policy option. In each instance in

which flow control authority is granted

under this legislation, that grant is

predicated on meeting debt obligations.

The final part is title III, which is

called groundwater monitoring. In it,

we reinstate a groundwater monitoring

exemption for small landfills in the

municipal solid waste landfill criteria.

All of this reflects back on the Resource Conservation Recovery Act, section 4010(c). One of the most significant

issues raised during the revision of the

criteria was the impact on small community landfills.

As a result, the October 9, 1991, final

rule for the criteria included a groundwater exemption of owners and operators of certain small landfills.

In January 1992, petitions were filed

with the U.S. Court of Appeals for review of the new landfill criteria. The

court, in its review, vacated the small

landfill exemption as it pertained to

groundwater monitoring.

The purpose of title III of the reported bill is to reinstate the exemption.

As many of us remember from the debate on interstate waste in 1992, the

flow of garbage raises intense local and

regional concerns. In some areas of the

country, this seemingly mundane issue

is politically potent. Who would have

thought that so much heat could be

generated by garbage disposal?

Mr. President, I believe this legislation represents a good-faith effort to

bring the various parties together on

the issues of interstate waste and flow
May 10, 1995 CONGRESSIONAL RECORD — SENATE S6421

control. It provides additional authority to waste importers without overriding the needs of waste-exporting

States.

It protects past community financial

investments with respect to flow control; yet, it provides opportunities for

the private sector. I commend the Senator from New Hampshire and look forward to working with him and other

Members of the Senate to approve this

legislation in an expeditious fashion.

Now, Mr. President, I would like to

yield the floor, without losing the

same, to Senator BAUCUS for his opening statement.

The PRESIDING OFFICER. The Senator from Montana is recognized.

Mr. BAUCUS. I am pleased to be here

considering legislation to give our

States and communities the right to

say ‘‘no’’ to out-of-State trash. That is

basically what the major portion of

this bill is all about—that is, enabling

States to say, ‘‘We do not want this

stuff and we have the right to say, no,

we do not want the garbage.’’ We need

this legislation to allow States to do

that, and that is basically because of

the U.S. Constitution, commerce

clause, article I, which basically states

that only Congress can regulate interstate commerce, States cannot. So we

are now acting in Congress.

Mr. President, we have been working

on this issue for a long time—6 years.

We have explored a lot of options, we

have held many hearings, and we have

debated this issue frequently. We

passed interstate waste bills in each of

the last three Congresses here in the

U.S. Senate. I believe it is finally time

to finish the job.

I will have more to say on that subject later. Let me say a little bit about

this legislation.

Garbage is big business. Each year,

the United States throws out more

than 200 million tons of municipal

waste. That is enough to build a 30-foot

wall of trash from Los Angeles to New

York. About 1 ton in 14 goes to a landfill or incinerator in another State.

Nearly every State is a seller or a

buyer in the municipal waste market;

47 States export some garbage, and 44

States import some garbage.

Some interstate movement of garbage makes sense. In Montana, for example, two towns have made arrangements to share landfills with western

North Dakota towns. Some trash from

Wyoming areas of Yellowstone Park is

disposed of in Montana. These arrangements save money for the communities

involved. And the establishment of

shared regional landfills can be a policy that does make sense.

But it only makes sense when the

communities involved agree to it. No

place should become an unwilling

dumping ground. Nobody should have

to take garbage they do not want from

another community.

The legislation before us takes us a

step closer to preventing Montana and

other rural States from becoming a national dump. It lets Governors freeze

imports at 1993 levels, and stop new imports if affected communities want

them stopped. It is not perfect, but it is

a good start.

Mr. President, I want to congratulate

the Senators who have worked so hard

over the years on this issue trying to

develop a balanced bill. Senator COATS

has been particularly helpful and particularly committed to enacting interstate legislation. Senators LAUTENBERG, MOYNIHAN, and our new chairman, Senator CHAFEE, and many others

have worked tirelessly.

This issue has been around Congress

long enough. I think it is time to stand

up for the small towns and finish the

job.

Senator LAUTENBERG, the ranking

member of the relevant subcommittee,

is now in the Budget Committee and is

not able to be here. He worked hard,

along with Senator SMITH, and at a

later time he will want to make a

statement.

Mr. CHAFEE. Mr. President, I yield

to the distinguished Senator from New

Hampshire.

Mr. SMITH. Mr. President, I thank

Chairman CHAFEE.

Mr. President, this bill is a compromise bill. It is not going to please

everyone, and maybe that is the reason

why it is a good piece of legislation, I

do not know. But a little more than 2

months ago, the Superfund Waste Control and Risk Assessment Subcommittee, which I chair, held a hearing to

consider proposals to regulate the

interstate transportation of solid waste

and whether to provide local control

authority to State and local governments.

The controversy here surrounding

the interstate transportation of municipal solid waste is one that the Senate

has been considering since 1990. Today,

47 States export approximately 14 to 15

million tons of municipal solid waste

per year for disposal in other States—

14 to 15 million tons.

While short-distance waste exports

have been occurring for some time, the

development of a long-haul waste

transport market has been a more recent development. With tipping fees as

high as $140 per ton in some large

cities, compared with the national average of between $30 and $50 a ton,

there is an incentive, obviously, from

municipalities to transport these

wastes by truck and rail to distant

States for some permanent disposal.

That is a pretty big incentive. Anywhere from $30 to $50 to $140 a ton is a

huge disparity.

Those States that have recently been

the recipients of large amounts of longhaul waste have raised a concern that

their limited capacity for solid waste is

being filled and that they have become

a dumping ground for somebody else’s

waste problems. So over the last few

years, 37 States have passed laws to

prohibit, limit, or severely tax waste

that enters their jurisdiction. However,

almost all of these laws have been

struck down by the Supreme Court for

violating the commerce clause of the

Constitution.

So while there has been a recent easing of disposal and the capacity to dispose nationwide, there is still significant concerns about the future consequences of this long-haul system.

Congress needs to define what the future is, whether we are going to honor

the interstate commerce clause or not,

or whether we are going to adjust it or

micromanage it, or do something with

it. But there are people out there who

are impacted, as we speak, by the fact

that this decision is still in limbo.

So to address these concerns, Congress—specifically the Environment

and Public Works Committee—has

been attempting to strike a balance between importing and exporting States.

Last year, the Committee on Environment and Public Works, of which I am

a member, unanimously reported S.

2345 to address this problem. A number

of Members, both on and off of the

committee, including very prominent

Members who will be involved in this

debate over the next couple of days,

like Senators COATS, SPECTER, LAUTENBERG, MOYNIHAN, and others, took a

very active role in attempting to develop a compromise that importing and

exporting States could live with. While

the Senate easily passed this compromise by a voice vote on September

30, 1994, it was the end of the session

and time ran out before this issue

could be finally resolved.

So this legislation has been a balancing effort, a real balancing effort.

In regard to the interstate transportation of municipal solid waste, we

have tried to carefully balance the issues of both the importers and the exporters, and nobody is happy with the

interstate language. Perhaps that indicates to me, as I said earlier, that we

might be on to something.

The bill that Senator CHAFEE and I

introduced incorporates the interstate

waste bill that unanimously passed the

Senate last year.

Let me repeat that, because I think

in the debate, as the chairman, Senator

CHAFEE, knows, it is getting lost. What

Senator CHAFEE and I are offering in

the area of interstate waste transfer

unanimously passed the Senate last

year. That is what we put in our bill.

That is simply all we are offering this

year.

Mr. CHAFEE. Mr. President, could I

ask a question to make a point?

When it passed unanimously last

year, that was when the other party

was in charge, had the majority. So not

only did all of the Democrats vote for

it in a bill that was drafted by a majority of the Democrats in the committee

and approved on the floor, but every

Republican likewise voted for it.

So two different parties have worked

on this legislation over 2 separate

years and come to exactly the same result. Having passed unanimously last

year, I certainly hope we can get on

with the same language, get the same
S6422 CONGRESSIONAL RECORD — SENATE May 10, 1995

approval this year of the same language.

Mr. SMITH. I thank Senator CHAFEE

for making that point. He is correct.

This is not a partisan issue. It is a

carefully crafted compromise to try to

accommodate some genuine concerns

out there among many individuals.

Again, in the Senate, controlled by

the Democratic Party last session, it

was passed unanimously. The Republicans are now under control, and we

are offering the same language again

on interstate transfer. There is not any

reason why we should have a huge fight

here, unless people, for whatever reason, are trying to capitalize on something or take unfair advantage.

We felt it was fair and we continue to

feel that now. Senator CHAFEE and I

are in agreement on that, and I know

there will be Senators from both the

importing and exporting States that

will try to weaken or strengthen, depending on their position, the interstate portions of this bill. The bill is in

two sections—both interstate as well

as flow control. There are two sections

to the bill.

My response is, we struck this compromise last year, all parties agreed,

and there have been no significant

changes. What would be the fight?

Let me move to the issue of flow control, because we have heard statements

from a variety of individuals before our

committee, very prominent individuals. Senator BILL COHEN, Governor

Christine Whitman of New Jersey and

others, Congressman CHRIS SMITH of

New Jersey, who asked Members to

move quickly to address the issue of

flow control. And we did. We moved

very quickly at the behest of those individuals.

Frankly, ever since we moved quickly at their behest, we have been getting

beat about the head and shoulders by

some who asked Members to move at

their behest. A number of witnesses expressed a strong concern that without

prompt congressional action to provide

for continued authority in this area,

many communities would be in danger

of having their bond ratings lowered.

That is true.

For those of my colleagues who may

not have heard me speak to this issue

on the subject of flow control, let me

be clear. This bill is in my subcommittee, the Superfund Committee, which I

chair. It is in my jurisdiction.

I tried to craft a compromise, which

I think we did successfully, to get the

bill to the floor and help those people

who did have a problem. I oppose flow

control. I think it is wrong. I do not

support walking away from the interstate commerce clause of the Constitution. I believe that we ought to stand

firm on that.

There is a situation that has developed, as Senator CHAFEE has already

outlined, where individuals—municipalities—have let bonds, and there are

people who stand to lose on this. So we

tried to craft a compromise. In that

compromise, we basically grandfathered, with reasonable

grandfathering provisions, those communities.

I do not believe that flow control is

necessary to deal with the problem of

solid waste. We do not—I think the private sector can do it just fine. I do not

believe the free market is broken.

There is no evidence that the free market is broken in this area.

There are many people who are involved in the transport of this material, and I refuse to believe that recycling cannot be accomplished without

flow control. I simply do not believe it.

I do not think there is any evidence to

say that. But some States and some

communities got themselves in a bind,

and we are trying to help them out of

that bind.

Instead, we are being attacked for

trying to help them, in many ways by

those who wanted it and now have dramatically changed or moved their position. That is the reason why nothing

has happened, because everybody wants

their position.

This is a compromise. That is the

point. I am sympathetic to the communities that feel they need congressional

assistance on this matter. There are

some. If we are starting from ground

zero and there were no bonds let, no

contracts signed, Mr. President, I

would be here on the floor saying no

flow control, period.

However, it was because of this plea,

that Senator CHAFEE and I moved forward to introduce this legislation, S.

534, that would provide the flow control

authorities to those municipalities

that imposed flow control and either

constructed or began construction of

facilities prior to May 15, 1994, the

Carbone decision.

While our bill provides limited grandfather protection for flow control, it

also—and this is the key issue—it gives

finality. This is final. At the end of 30

years it is over. There is no flow control anymore. We now have the free

market kick in. We have help during

this 30-year period which I think is

more than ample. There are not any

bonds I am aware of beyond the 30-year

period. So precisely 30 years after the

legislation is adopted, no further flow

control measures will be allowed—

none, zero, zilch.

Both my subcommittee as well as the

full committee moved very quickly to

mark up this legislation. We did so primarily to help those communities

whose bond ratings are endangered as a

result of the Supreme Court’s recent

action. They are. We agree they are.

They should not have gotten themselves in that position, but they did.

Rather than get into whether or not

they should not have gotten into that

decision, we did not use that as a criteria. We simply said for whatever reason, they made some decisions that

maybe they should not have made, but

they are in that position so we will

help them out.

Speaking for myself, I am very uncomfortable with providing flow control authority. I do not want flow control authority. I felt that the bill of

Senator CHAFEE and myself struck a

fair balance in accommodating those

who are strong proponents of States

rights and those who are strong proponents of the free market. It is a compromise for both of those positions.

During the course of the last 2

months, I have continued to work to

accommodate Senators who had concerns about various proceedings in the

bill. Everyone wants a fix. We are now

hearing from the sublime to the ridiculous. ‘‘Well, we might have a contract

in 5 years, we are thinking about it.

Could we be exempted?’’ No, absolutely

not. We are not going to exempt them,

if I have anything to say about it. That

is wrong. It defeats the spirit and intent of what we are trying to do.

We cannot satisfy everyone. We have

tried. We tried hard to address the legitimate concerns, and we will address

those concerns. Some of the amendments we will accept. Some we will

not.

As a result of our efforts, the EPW

Committee ordered this reported as

amended on March 23 by a rollcall vote

of 16–0. Again, the whole sequence of

events here: Last year it was unanimous, no objection by Republicans or

Democrats in the Senate in a Democrat

Congress. We have a Republican Congress, it passes the committee 16–0.

That says something about this bill.

It says that those people out there who

are trying to dramatically alter the

bill are simply on a course that is not

going to be in the best interest of those

people who are sitting out there right

now waiting for help, which is why we

mark this bill up.

I have to say if we ask Senator

SMITH, ‘‘What are your priorities in the

subcommittee of the Superfund?’’ It is

Superfund reform. That is what we are

working on. We have had six hearings

on it. We have another hearing tomorrow. We had one yesterday. We will try

to draft a bill in the next 6 weeks to 2

months, and that is a high priority.

Because people came to me, including the ranking member of the subcommittee, Senator LAUTENBERG, and

outlined these problems, we agreed—

Senator CHAFEE and I and others—-

that we would bring this bill to the

floor as quickly as possible. We have

done that and, frankly, with great difficulty, simply because we have been

focused on the Superfund issues. I did

not anticipate the amount of amendments and the amount of opposition

that would be generated on this bill.

But let me just make this very clear

to my colleagues. I believe this is an

emergency bill for those communities

or individuals or entities that have let

those bonds. There are communities in

a number of States that need quick

passage of this legislation to provide

them with the financial relief for their

previously flow-controlled facilities. If

this bill gets bogged down because of

amendments, everyone trying to get
May 10, 1995 CONGRESSIONAL RECORD — SENATE S6423

their way—they want total flow control or no flow control or no

grandfathering or we move into the

interstate waste transfer and they

want no exporting or total exporting or

the Governor having the total right to

make decisions and communities having no rights or whatever—whatever

the position may be, if they insist on

that, this bill will get bogged down. It

will not get passed by the end of this

week, this legislative week, on Friday.

And the budget will be up next week.

After that, I cannot imagine where

there will be a window of time to deal

with this again. So I appeal to my colleagues who desperately want this bill

to help them and their communities in

their States with this flow control to

not hold this bill up by adding amendments or trying to add amendments

that may in fact derail it. Because once

it is derailed, in my opinion, it is going

to be a long time until it gets back

here.

It is the leader’s decision, of course,

when it comes up. But the point is

there is so much on the table after

Monday when the budget comes up,

any discussion of flow control, with all

due respect, is going to be way down

here when the budget and the numbers

in that get out and the American people begin to interact with their Senators and Congressmen on that.

So I think there is going to be a lot

of discussion. If Members choose to oppose this or dilute it or whatever they

choose to do, or even—maybe they

would like to strengthen it—they will

do it at their own peril. This issue,

which has been simmering for the last

6 or 7 years, will continue to remain on

the back burner during the 104th Congress.

I hope that does not happen, but the

choice is clear. Either vote to pass this

bill which has the overwhelming majority support, maybe unanimous support, in the Senate and protect those

facilities that come within the scope of

this bill, or risk it all to protect a

small handful of communities that do

not fit within this legislation, who are

trying desperately to create a situation

where, if they want to have flow control at some point in the future, they

can have it, or if they have let a little

bit of money out there somewhere, a

relatively insignificant amount, and

they are not sure what they are going

to do—that violates the spirit and intent of this bill and I hope it does not

happen.

We will be down here as long as it

takes to deal with the amendments. I

appeal to colleagues, if they have

amendments, let us try to work them

out. We will try to work out the ones

we agree with, and if we can agree with

them, we will accept them. If they violate the spirit and intent of what we

tried to do in drafting this bill, we will

oppose them forcefully on the floor of

the Senate.

Let me conclude with a brief summary as follows. Communities out

there, as far as flow control is concerned, are in a tough situation. According to the public securities situation, $20 billion in bonds have been issued to pay for flow-controlled facilities. That is not the fault of the U.S.

Senate. The interstate commerce

clause, I believe, was in effect when

that happened. But somehow it got ignored and they got into this bind and

they have $20 billion in let bonds.

We are going to try to help them and

we do help them with this legislation.

We grandfather them, we protect them.

We protect the investors, the bondholders, the taxpayers, the individuals

out there who have in whatever way

participated in these bonds.

As a result of the Carbone decision,

the Supreme Court invalidated flow

control, so it is in limbo. Here we are

in limbo. Nobody knows what to do.

They do not know whether to proceed

or not to proceed, because they do not

know what Congress is going to do in

regard to the interpretation of that decision.

Six incinerators in New Jersey have

had their bond ratings lowered, and I

am sure that is the case in other

States, because flow control was invalidated. Again, we are trying to help

those communities. That is the goal.

Dozens of incinerators and landfills are

in immediate danger if flow control is

not reauthorized immediately, and

every bond based on flow control authority is threatened, every one. Every

single bond out there is threatened unless we do something soon. The longer

it goes on the worse the threat gets.

So the bill provides a narrow flow

control authority to protect those

bonds. Again, it is a compromise. It is

a fair compromise. It is not my position totally. I would be for no flow control. That is not my position. But it is

a compromise position to help those individuals.

With that, Mr. President, I yield the

floor and indicate I hope we could get

some time agreements and some reasonable information regarding these

amendments. If Members who have

amendments could come to the floor

and offer them in a timely manner so

we do not get bogged down and not pass

this bill by the end of the week.

Mr. CHAFEE. I thank the distinguished Senator from New Hampshire.

PRIVILEGE OF THE FLOOR—S. 534

Mr. CHAFEE. Mr. President, I ask

funanimous consent James McCarthy,

of the Congressional Research Service,

be granted the privilege of the floor for

the pendency of S. 534.

The PRESIDING OFFICER. Without

objection, it is so ordered.

Mr. SMITH. Mr. President, I ask

unanimous consent Mr. Paul

Longsworth, a U.S. Department of Energy employee assigned to my staff for

a period of 1 year, be granted the privilege of the floor for the duration of the

consideration of S. 534.

The PRESIDING OFFICER. Without

objection, it is so ordered.

The Senator from Oregon.

ENDANGERED SPECIES ACT

REFORM AMENDMENTS

fMr. PACKWOOD. Mr. President, I am

pleased to join with my colleagues as

an original cosponsor of the Endangered Species Act Reform Amendments

of 1995. This bill is the result of several

years’ work. The bill represents the

culmination of a broad, grassroots effort to bring balance to the Endangered

Species Act. This coalition consists of

miners, ranchers, loggers, refiners,

manufacturers, the fisheries industry,

and organized labor.

There are problems with the current

Endangered Species Act. The Endangered Species Act is an act that has

gone awry. It is wreaking havoc on our

communities and economies, particularly in the Pacific Northwest, but increasingly nationwide. It is devastating entire regions and industries. In

the Pacific Northwest alone, since the

spotted owl was listed as threatened in

1990, millions of acres of Federal

timberland and thousands of private

acres have been set aside. It takes

about 1,300 acres for a pair of owls to

breed, so we are told. We have set aside

thousands and thousands and thousands of acres in hopes of the owl being

saved. No guarantee it will, no guarantee it will not, but a tremendous damper on legitimate economic activity.

It has impacted tens of thousands of

human beings and hundreds of rural

communities. The estimates on job

losses range from a low of 35,000 to a

high of 150,000 in the Pacific Northwest.

I was here when the act was originally passed, and I remember what our

intention was. We were thinking ‘‘a’’

project: a dam, a road, a canal versus a

species. When you read the debate,

when the original Endangered Species

Act was passed, I do not recall the

word ‘‘ecosystem’’ being mentioned in

the debate. None of us was thinking of

an entire section of the country being

affected by one species. Yet this act is

now being used as a tool by environmental groups to further their agenda

of locking up not only all public land

but much private land as well.

I want to emphasize again, this act

applies to private land. For a long time

I think people thought this was a public land issue in the West, that while it

might limit the activities of the U.S.

Forest Service or the Bureau of Land

Management or the U.S. Park Service,

it did not affect private land. It does. It

affects your right in ownership. It can

diminish the value of your land in

every sense. The Government can take

your property under the current Endangered Species Act and not pay you.

Private property owners are increasingly losing the right to use their property as they intended.

Let us look at the economic cost of

the Endangered Species Act. Edward O.

Wilson, a renowned entomologist, has

observed that there may be something