May 12, 1995 CONGRESSIONAL RECORD — SENATE S6591

right has a consequence, a consequence

that is both unintended and, I submit,

undesirable.

There are cases in which the defense

team decides not to put the defendant

on the stand, which is fine, and then,

though, attacks the victim’s character

and the victim when that victim, himself or herself, takes the stand and testifies. In effect, the defense lawyers put

the victim on trial while at the same

time being able to shield the defendant

from questions about that defendant’s

own character.

I think it is time to end the free ride

for these defendants. Let us simply say

to the defendants and let us say to the

defendants’ lawyers this: If you, the accused or a lawyer, want to attack the

character of a victim, then you can expect the prosecutor to call your character into question. It is only fair. It is

only right. It is only just.

No. 4, let us make people who are accused of sexual assault be tested for

HIV. If you, or one of your loved ones,

was the victim of a sexual assault

today, it is very difficult to find out if

the attacker has HIV, and in today’s

society, is that not something that the

victim should know? Is that not something that the court system should

help the victim to determine?

Last year, the Senate version of the

crime bill did have a provision mandating HIV testing of persons arrested for

sexual assault. The Clinton administration supported this provision. But in

the other body, for some reason, it was

dropped.

My legislation would change that.

My legislation would put that back in.

My legislation would force the HIV

testing of these defendants and the disclosure of the testing results to the

victims of crime.

No. 5, a fifth way to make our system

more fair and more just to the victims

of crime, let us make the jury, the

whole jury system, a level playing

field. The O.J. Simpson trial has focused America’s attention on the process of the selection of a jury. How do

we make sure that the jury is a fair

panel?

Mr. President, under today’s Federal

laws, prosecutors can challenge six potential jurors without giving cause,

what in the courtroom they call

‘‘cause.’’ Six jurors can be knocked off

without giving any reason. Defense

lawyers, however, can challenge 10

without giving a reason. These are

called generally peremptory challenges

where each side can excuse a juror

without giving a reason.

I think that we should give victims

an impartial trial, jury, and a fair

shake. To do that, I think we need to

give both the prosecution and the defense simply the same number of peremptory challenges. It only seems

right, and it only seems fair.

Mr. President, all the provisions I

have discussed today to protect victims

have a common theme. In our judicial

system, we cannot condone the

revictimization of crime victims. Our

system is and must be impartial. It

must be impartial between the prosecution and the defense, all the while recognizing the presumption of innocence

on behalf of the defendant.

There is no reason that the presumption of the defendant’s innocence

should be construed in such a way that

it condones heartless treatment of

crime victims. The criminal law embodies some of the truly fundamental

values of our society. One of these values is that we should console those who

have been hurt. We should not victimize them further.

A number of years ago when I was a

county prosecuting attorney, I would

see the victims of murder and other

violent crimes. I would interview people who had been abused, assaulted,

and raped. I learned a lot from talking

to these innocent people. I learned that

we have to make the crime victim a

full participant, not a forgotten person,

in the criminal justice system.

The proposals I have just outlined

would help us make some progress in

turning the criminal justice system

into a more victim-friendly enterprise.

It is long past time that we stop treating the victims like they are criminals

and the criminals like they are victims.

My legislation is an attempt to move

the concerns of crime victims toward

center stage in our Federal criminal

justice policy.

Next week, I will continue my series

of speeches on the crime bill that I intend to introduce next week. On Monday, I will explain what I think we

ought to do to get more police officers

on the streets, particularly to get more

police officers on the streets where the

crime is the highest, because if there is

one thing that we know, it is this: Law

enforcement officers who are well

trained and who are deployed correctly

on our streets will, in fact, reduce

crime. That is a fact. That is the truth.

I will talk more about this next week.

Mr. President, I yield the floor.

Mr. CHAFEE addressed the Chair.

The PRESIDING OFFICER. The Senator from Rhode Island.

MORATORIUM ON REGULATIONS

Mr. CHAFEE. Mr. President, in

fMarch of this year, just 2 months ago,

this Senate considered a bill that

would have imposed an across-theboard moratorium on the issuance of

new major regulations. That acrossthe-board moratorium would have extended from last November’s election

up until the end of this year, the end of

1995. It would have encompassed all of

1995 and the last several months of 1994.

That bill came up before the Senate,

and it was overwhelmingly rejected by

this Senate. Instead, on this acrossthe-board moratorium, the Senate

adopted a substitute amendment which

was offered by the Senator from Oklahoma and the Senator from Nevada.

And that provided for a 45-day review

of major new rules coming up before

the new rules by the Congress. This 45-

day review was agreed to by this Senate 100–0. Any time you can get a vote

of 100–0, it is considered favorable;

overwhelming is an understatement.

Before that bill was sent over to the

House and to the conference of House

and Senate Members, many of us here

in the Senate made clear that if the

conference report came back with an

across-the-board moratorium, we

would oppose it. We do not want these

across the board moratoriums. We

wanted the situation that was proposed

by the Senator from Oklahoma which,

principally, was for a 45-day review.

I want the Senate to know, as I indicated during the earlier debate, that I

will oppose the conference report if it

includes provisions of the type that I

outlined, namely the restoration of

these broad moratoriums that this bill

had.

Now, yesterday, a Member of the

House released a list of the rules that

they have targeted in the House. They

are not satisfied with a 45-day review.

They have targeted some 30 rules—12 of

them are EPA rules; 4 of them are

worker safety rules to be issued by

OSHA; 10 of the rules relate to food and

drug safety. Almost all of the rules on

the list that are targeted by the House

are there to protect public health,

worker safety, and the environment.

I notice that the occupant of the

chair is the distinguished Senator from

Minnesota. One of the rules that is targeted deals with the Great Lakes clean

water quality guidance. I do not know

the position of the occupant of the

Chair on this. I suspect that most of

the Senators from those States—Illinois, Indiana, Michigan, Minnesota,

New York, Ohio, Pennsylvania, and

Wisconsin—are interested in the quality of the water in those Great Lakes.

The EPA has proposed an initiative

dealing with that situation. The EPA

has estimated a proposal that could

cost from $80 to $500 million annually.

This has to do with the cleanliness of

those lakes. This is one of the rules

that has been targeted by the House

Members, one that would be subject to

an extensive moratorium.

There are a host of others, Mr. President. One of them I will describe. It is

a rule promulgated under the Safe

Drinking Water Act. It would reduce

the levels of so-called disinfection byproducts in drinking water. These are

the chemicals that form when water is

chlorinated, as is done in most communities. It is chlorinated to kill bacteria

and other organisms. The chlorine, in

some instances, combines with other

substances in the water to form new

chemicals, such as chloroform, that

may cause significant cancer risks for

those using the water.

A recent article in the American

Journal of Public Health indicated that

up to 10,000—not 1,000, but 10,000—cases

of cancer per year may be attributable

to these chemicals in our water. EPA

has been working on a rule to reduce

this health risk.
S6592 CONGRESSIONAL RECORD — SENATE May 12, 1995

Did EPA just conceive this rule as a

bunch of bureaucrats sitting down at

EPA headquarters? This is what they

did. They convened a regulatory negotiation involving all of the parties that

had an interest. The drinking water

suppliers, the States, the cities, public

health organizations—a very broad

group worked for 2 years on this rule.

With one exception, this broad range of

interests all signed an agreement at

the end of the process supporting the

proposed rule. The proposed rule reflects a significant consensus across

virtually the entire community of interests involved in drinking water.

Now, under the House proposal this

would be targeted; it would be suspended, you could not have the rule.

You could not have the rule until some

indefinite period—until certainly perhaps the end of this calendar year, and

probably into the future likewise. Why

should they do that? I am opposed to

that type of action by the House of

Representatives.

A second item on the list is a petition that EPA approved last December.

It was a petition submitted by 13

States from the northeast—my State

involved likewise—asking that cars

with pollution controls such as those

used in California also be sold in the

Northeast to reduce our air pollution

problems. This was not an EPA proposal. In fact, EPA was reluctant to approve this petition. It was required by

the Clean Air Act because 13 States

had made the request.

I was under the impression that

many of those who support these regulatory reform efforts want to return

more responsibility to the States. They

say, ‘‘We believe in the States and

States rights.’’ Here we have a proposal

that was made by the States that is

targeted on this House list as being

suspended.

Now, a third item on this list is the

Federal implementation plan for California that was promulgated in February. EPA was ordered by the courts

to produce this plan when California

failed to come up with its own program. The EPA program has been controversial in California and Governor

Wilson has asked that it be suspended.

And this list would target it for suspension.

But this EPA clean air plan for California has already been overturned.

The supplemental appropriation for the

Defense Department enacted earlier

this year already repealed the California plan, including this item on this

list of 30 rules to be killed must be an

error, because Congress has already

acted to repeal this rule. I bring this

item to the attention of the Senate to

make that point. Where specific measures, including rules that are required

by the courts because of laws enacted

by the Congress, go too far, we should

take action to correct the excess. We

have done that in several cases. We do

not need an across-the-board moratorium, as mandated by the House in the

legislation it passed and suggested for

this conference.

Another item on this list is also from

the Clean Air Act. It is the employee

trip reduction program that requires

large employers in most severe nonattainment areas to work with their

employees to reduce the number of vehicle trips each day. In other words,

this is a way, in nonattainment areas

of the country where they have not attained the clean air requirements,

goals, that large employers would work

with their employees to reduce the

number of vehicle trips. Six hundred

employees, six hundred cars—is that

necessary, or is there another way of

doing it? EPA has not issued, nor is it

about to, any rule implementing this

requirement of the act. So there is no

rule to suspend.

This is a requirement of the Clean

Air Act that guides States in the development of their own implementation

plans. It is carried out by the States

without Federal regulation. This is an

example where a mechanism called a

regulatory moratorium, such as the

House is suggesting, is being used to

reach into the Clean Air Act and knock

out a specific policy that some in the

House apparently do not like.

I am not here to defend the employee

trip reduction program. In fact, earlier

this year I asked EPA Administrator

Carol Browner to look for other approaches to the problem of the increasing number of vehicle trips and miles

that are traveled that we might substitute for this measure in the Clean

Air Act. I am not arguing policy

grounds one way or the other. My point

is that in the guise of regulatory moratorium, some in the House are seeking

to repeal the provision of the Clean Air

Act that is not even implemented

through Federal rulemaking. This proposal is not to freeze a rule. There is no

rule to freeze. This is a proposal to

change the law.

This list reflects an attack on 30 specific policies that some Members of the

House would like to see reversed. These

policies are intended to protect public

health, worker safety, and the environment. I am familiar with the rules on

the list that would come from EPA.

They cannot be characterized as rules

written by out-of-control bureaucrats

without regard for cost or risk reduction. To the extent that rulemakings

are actually involved, they have all

been subject to cost-benefit analysis

under existing regulatory review requirements. In some cases the rules

have either been painstakingly developed in consultation with State or

local governments are actually written

by the States themselves.

Mr. President, the House is no longer

proposing a regulatory moratorium.

What we have here is a fishing expedition. They have thrown out a long list

of policies they want killed to see how

many the Senate will take in the name

of compromise to get a bill. I hope our

Senate conferees will not engage the

House in this discussion.

Mr. President, the Senate voted overwhelmingly to reject an across-theboard moratorium on new rules. I trust

the Senate conferees will not allow the

conference to produce a bill that

makes 30 specific changes in law without hearings, without debate in either

body on the specific policies, and without the opportunity for Members to exercise their rights to offer amendments

and have votes on the substantive

questions at stake. That would be an

extraordinary abuse of the standards

that are to be observed by a conference

committee between the House and the

Senate.

Mr. President, I suggest the absence

of a quorum.

The PRESIDING OFFICER (Mr.

DEWINE). The clerk will call the roll.

The legislative clerk proceeded to

call the roll.

Mr. DOLE. Mr. President, I ask unanimous-consent that the order for the

quorum call be rescinded.

The PRESIDING OFFICER. Without

objection, it is so ordered.

Mr. DOLE. Mr. President, let me

state to my colleagues who are wondering about votes today, we believe we

may have a unanimous-consent agreement. If it is approved, there will be no

additional votes today. We should have

word on that, hopefully, in the next

few minutes. I know many of my colleagues have other things to do so we

will try to keep everybody apprised.

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. 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.

AMENDMENT NO. 1074

(Purpose: To promote local and regional

planning for effective solid waste collection and disposal and for reducing the

amount of solid waste generated per capita

through the use of solid waste reduction

strategies)

Mr. CHAFEE. Mr. President, I send

an amendment to the desk on behalf of

Senator MCCONNELL 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. MCCONNELL, proposes an

amendment numbered 1074.

Mr. CHAFEE. 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:

At the end of the amendment add the following:

TITLE —STATE OR REGIONAL SOLID

WASTE PLANS

SEC. 01. FINDING.

Section 1002(a) of the Solid Waste Disposal

Act (42 U.S.C. 6901(a)) is amended—
May 12, 1995 CONGRESSIONAL RECORD — SENATE S6593

(1) by striking the period at the end of

paragraph (4) and inserting ‘‘; and’’; and

(2) by adding at the end the following:

‘‘(5) that the Nation’s improved standard of

living has resulted in an increase in the

amount of solid waste generated per capita,

and the Nation has not given adequate consideration to solid waste reduction strategies.’’.

SEC. 02. OBJECTIVE OF SOLID WASTE DISPOSAL

ACT.

Section 1003(a) of the Solid Waste Disposal

Act (42 U.S.C. 6902(a)) is amended—

(1) by striking ‘‘and’’ at the end of paragraph (10);

(2) by striking the period at the end of

paragraph (11) and inserting ‘‘; and’’; and

(3) by adding at the end the following:

‘‘(12) promoting local and regional planning for—

‘‘(A) effective solid waste collection and

disposal; and

‘‘(B) reducing the amount of solid waste

generated per capita through the use of solid

waste reduction strategies.’’.

SEC. 03. NATIONAL POLICY.

Section 1003(b) of the Solid Waste Disposal

Act (42 U.S.C. 6902(b)) is amended by inserting ‘‘solid waste and’’ after ‘‘generation of’’.

SEC. 04. OBJECTIVE OF SUBTITLE D OF SOLID

WASTE DISPOSAL ACT.

Section 4001 of the Solid Waste Disposal

Act (42 U.S.C. 6941) is amended by inserting

‘‘promote local and regional planning for effective solid waste collection and disposal

and for reducing the amount of solid waste

generated per capita through the use of solid

waste reduction strategies, and’’ after ‘‘objectives of this subtitle are to’’.

SEC. 05. DISCRETIONARY STATE PLAN PROVISIONS.

Section 4003 of the Solid Waste Disposal

Act (42 U.S.C. 6943) is amended by adding at

the end the following:

‘‘(e) DISCRETIONARY PLAN PROVISIONS RELATING TO SOLID WASTE REDUCTION GOALS,

LOCAL AND REGIONAL PLANS, AND ISSUANCE

OF SOLID WASTE MANAGEMENT PERMITS.—Except as provided in section 4011(a)(4), a State

plan submitted under this subtitle may include, at the option of the State, provisions

for—

‘‘(1) establishment of a State per capita

solid waste reduction goal, consistent with

the goals and objectives of this subtitle; and

‘‘(2) establishment of a program that ensures that local and regional plans are consistent with State plans and are developed in

accordance with sections 4004, 4005, and

4006.’’.

SEC. 06. PROCEDURE FOR DEVELOPMENT AND

IMPLEMENTATION OF STATE PLANS.

Section 4006(b) of the Solid Waste Disposal

Act (42 U.S.C. 6946(b)) is amended by inserting ‘‘and discretionary plan provisions’’ after

‘‘minimum requirements’’.

Mr. MCCONNELL. Mr. President, I

rise today to offer an amendment to

help States get a handle on their local

waste flows and to ensure that States

are not precluded from establishing regional solid waste reduction plans.

Next year, the subtitle D regulations

affecting landfills will go into effect.

These new regulations will force States

to closely reevaluate their disposal

needs and develop their own comprehensive plans on how they might

implement the more stringent regulations.

Kentucky has already taken the initiative in establishing one of the most

comprehensive solid waste reduction

plans of any State. The Kentucky plan

mandates that regional and local authorities establish a waste collection

and disposal plan as well as regional

waste reduction strategies. These efforts have proven effective in stopping

illegal dumping, increasing recycling,

and reducing the overall need for landfill space.

Unfortunately, without Federal legislation these plans are open to constitutional challenge. Mr. President, where

does that leave us? How can States effectively meet the goals of reducing

waste flows, increasing recycling, and

improving landfill standards if they are

prohibited from establishing an effective waste management plan?

Those of us who have been involved

in the interstate waste issue know, this

legislation is necessitated by the commerce clause of the Constitution. A

number of State and local initiatives

that attempted to deal with solid waste

issues have wound up in court, and

eventually been struck down based on

this provision of the Constitution. Consequently, it is virtually impossible for

a State to effectively deal with their

own waste flows without a specific delegation of Congress’ plenary commerce

power.

In every Congress since 1990 there has

been an attempt to provide States the

authority to keep the interstate flow of

solid waste in check. Over the past 6

years, I have fought hard with Senator

COATS to ensure that States like Kentucky and Indiana do not become

dumping grounds for those States that

have refused to control their own waste

flows.

Mr. President, my amendment will

correct this by authorizing States to

establish a comprehensive plan for

waste reduction. This is essential if

communities are to get a handle on

their own waste flows through plans

that promote local planning and are

consistent with the objectives of subtitle D, of the Solid Waste Disposal Act

passed by Congress in 1991.

Gone will be the days of open dumps

and multitudes of cheap landfills when

the new standards are implemented in

1996. These standards will mandate liners, leachate collection and treatment,

groundwater and gas monitoring, and

new corrective action. The EPA has estimated that nearly half of the Nation’s 6,000 landfills will close. In Kentucky, new landfill standards have already gone into effect and the number

of landfills has declined dramatically

from 29 to just 6. Mr. President, these

new regulations will compel many

States to rethink their disposal needs

and how they should plan for the future.

Many States may find they do not

have an effective plan for disposing of

their waste. States will need to establish a plan for consolidation, reduction,

and recycling programs mandated by

the Resource Conservation and Recovery Act. Again, my amendment will

help States plan for the inevitable and

protect already established plans from

legal challenge.

Mr. President, this amendment will

not eliminate existing host community

agreements, nor will it ban the interstate flow of waste. In fact, in Kentucky a special landfill was recently

authorized to accept waste from out-ofstate. A number of Kentucky counties

continue to ship and accept nominal

amounts of waste from our neighboring

States of West Virginia, Ohio, Indiana,

and Illinois. My amendment will not

disturb these arrangements.

Mr. President, my amendment is entirely consistent with the export reduction strategies contained in this bill.

I have worked with the officials of

the Kentucky Department of Natural

Resources and Environmental Protection Cabinet and officials in Magoffin

County to ensure that State and regional waste plans are protected in this

legislation. I am appreciative of their

assistance.

Today, Congress will clarify whether

States have the authority to establish

their own plan for the disposal of

waste. Only with the explicit delegation of this authority can States be

certain that they are acting within a

constitutional framework.

I would like to thank the managers

of this bill for accepting this amendment.

Mr. CHAFEE. Mr. President, I congratulate Senator MCCONNELL for the

work he has done in connection with

solid waste. It is a subject he has been

interested in for a good number of

years.

Kentucky is a State that has established one of the most comprehensive

solid waste reduction plans of any

State and the Senator was very conscious of that in his dealing with the

legislation before us.

Mr. President, I again congratulate

the distinguished Senator from Kentucky, Senator MCCONNELL, for the

work he has done.

Mr. BAUCUS. Mr. President, we have

reviewed the amendment on our side

and urge its adoption.

The PRESIDING OFFICER. If there

be no further debate, the question is on

agreeing to the amendment.

The amendment (No. 1074) was agreed

to.

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. BAUCUS. 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. BAUCUS. Mr. President, I ask

unanimous consent to proceed as in

morning business.

The PRESIDING OFFICER. Without

objection, it is so ordered.