Jeff Bingaman

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I want to speak a little bit about the supplemental appropriations bill, which I gather will be on the floor here probably next week, and this issue which has come to light about the effort to put a so-called continuing resolution onto the supplemental appropriations bill. I want to just try to make sense out of that as best I understand it and describe my recollection of things. There has been a lot of talk in the last few days about the shutdown of Government that occurred in the last Congress. I was here at that time and I remember the occasion. What was happening, as I recall it, was that the President indicated very clearly in public statements and private statements, in a variety of ways, that he would not sign appropriations bills that contained major cuts in education and some of the funds for enforcement of the environmental laws in particular. Those were areas of great concern to the President. He indicated that he wanted Congress to agree with him to maintain funding in those areas--not necessarily increase it, but at least maintain funding in some of those areas before he would sign those bills. In spite of those statements to that effect, the majority here in Congress sent those bills to the President and he vetoed them. Accordingly, we had a shutdown of the Government. There was no funding available through that appropriations process for those areas of the Government that were covered by those appropriations bills. So, essentially, what was going on was that the majority in Congress was trying to force-feed the President to accept some proposals and some cuts in funding that he was not willing to accept, and that precipitated a crisis. Some felt strongly. Some in the majority party-- the Republican Party--at the time felt strongly enough about it that they were willing to just keep the Government shut down and not send another continuing resolution, not agree to fund Government at the steady State level, but to allow the Government to stay shut down as a way of gaining leverage in those negotiations. I believe it was on the 18th day of, I think, the second shutdown when Senator Dole, the leader in the Senate, finally came to the Senate floor and spoke and said that he believed enough was enough and he himself was going to urge that a continuing resolution be passed in order to go ahead and at least keep the Government funded on a steady-state basis while negotiations between the President and the Congress continued. I came to the floor right after Senator Dole spoke, or I was here at the time he spoke, and I commended him for his decision to break with the House leadership and to go ahead, after 18 days of shutdown, and finally go ahead and fund these departments of the Government. Many of his colleagues here in the Senate followed his lead after that and agreed to go ahead and pass a continuing resolution to fund those areas of the Government. That was the shutdown, as I recall it. That is a general description of the shutdown that occurred. What we have now is a bill to provide very important funding for a variety of subjects. It is all wrapped into this supplemental appropriation. It is a supplemental, of course, because it is not one of the regular appropriations bills which we do each year. It is a supplemental that comes at an unusual time, and the time that we are dealing with this has been driven, perhaps as much as anything, by the natural disasters that have occurred in particular parts of the country, in North Dakota, South Dakota, Minnesota, and in some other areas as well. There are some other provisions in this supplemental which are also very important. My home State of New Mexico will be able to receive, under this supplemental, $14 million of desperately needed highway funds, which should have been provided to us under last year's bill and which I made a major point about in the last Congress. We had been fighting to get this money for over 6 months. We lost it in the last set of appropriations bills. This year, we have been able to persuade the appropriators to include it in this supplemental, and I think that is a very important step forward. So there are provisions in this bill that are important to my State highway funds, title I funds, as well as, of course, the provisions that are intended to assist with the disaster relief, which is so needed by many families that have been devastated by the weather and by the floods that they have experienced in recent weeks in these areas of the Midwest. So that is where we are. The problem has come up that there is an amendment being included in the supplemental appropriation that is another continuing resolution, and it says that essentially if we adopt that amendment, it would say that if the Republican majority in Congress does not send the President an appropriations bill he will sign, an acceptable appropriations bill, in any area, there will be allowed to be continued funding in those areas at a rate of 2 percent less than this current fiscal year. The difficulty with it, of course, is that it again changes the dynamic very greatly against a real compromise occurring between the Executive and the Congress on these very important funding issues. It says to the President, ``Look. Before, you had the ability to veto an appropriations bill which you disagreed with, and then everyone had to go back to the table.'' Now, if we add this continuing resolution provision to the supplemental, that requirement won't be there anymore because there will be no pressure on the Republican Congress to go back to the table and negotiate further with the President. The President will, if we send an appropriations bill that he determines is unacceptable for whatever reason and he vetoes it, as called for in the Constitution, then there is no pressure on the Republican leaders in Congress to renegotiate. They will have in place at that point a continuing resolution, which will have been part of the supplemental, which says we are going to fund everything, and, by the way, the funding level is going to be 2 percent less than it was in the previous year, or, in the case of areas such as education, it is going to be 7 percent less than he requested for this year. That will be the steady rate, and that will be the continuing situation from now on. So there is no pressure for the compromise that the Constitution contemplates between the executive branch and the legislative branch to occur. I think it is a very ill-advised provision. I think the President is taking the right position by saying that he will not agree to this kind of continuing resolution being adopted as part of this supplemental. But basically, if the Congress says to the President, If you want this relief for these flood victims, if you want this money for highways in New Mexico, if you want this money for Head Start, or for title I, or any of the other provisions in this supplemental, then you have to agree to a spending level that is 2 percent below this current year's level in all of these other areas, unless we are able to send you something else that is preferable at a later date. This is not an acceptable proposal. I think the President is correct in refusing to agree to it. We on the Democratic side are correct in refusing to agree to it. What we should do, and what I believe the American people would like us to do, is to go ahead and approve the supplemental appropriations bill, go ahead and appropriate the funds for flood relief, go ahead and appropriate the funds for the additional highway funding, go ahead and appropriate the additional funds for title I. Then we can have a debate, as we go through the rest of this year, on the budget resolution and on the appropriations bills. We can have a debate about what the right level of spending ought to be in each of these other areas. We should not at the very beginning, before we have a budget resolution, before we have any appropriations bills, have some kind of legal provision that says, unless the President agrees to what the Republican majority in Congress sends him, that he has to settle for a 2-percent cut in all areas: education, environmental protection, and all of the other areas. That is what this continuing resolution provision would do. It needs to be dropped from the supplemental appropriations bill if we are going to go ahead and pass this supplemental appropriations and have it signed into law. It is very important that it be signed into law, and sooner rather than later. Mr. President, I yield the floor. Mr. President, I suggest the absence of a quorum.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. BINGAMAN

Mr. BINGAMAN. I yield myself such time as I will consume out of that 31 minutes. Mr. President, when I hear the debate here on the floor, it strikes me that anyone who is watching or listening to this debate must think that we are talking past each other. It must appear that we do not seem to be able to engage on any one subject. One Senator comes to the floor and talks about voluntarism, the need to protect volunteers from liability; another Senator talks about Alexis Herman, the President's nominee for Secretary of Labor and the need to get that nomination confirmed. People cannot understand why we are not talking about the same thing. Let me just give my perspective of where we are. On the Democratic side, the position that many of us are taking is that we should not be going ahead with business as usual in the Senate on the last day of April unless we can get the majority to agree to allow a vote on the President's Cabinet nominee. We are getting fairly far into this year. The President, several months ago, nominated Alexis Herman to be the Secretary of Labor. In the Labor and Human Resources Committee we voted unanimously to recommend to the full Senate that she be confirmed for that position. Just in the last couple of weeks we have been told that vote will not be taken on the Senate floor, we will not have a chance to vote for her confirmation because some on the Republican side disagree with the President's Executive order on another issue related to project labor agreements. He issued an Executive order on that subject which they did not agree with. Mr. President, I strongly support the nomination of Alexis Herman to be our Secretary of Labor. Our committee, the Labor Committee, did report that nomination to the full Senate for consideration. We did so unanimously. This was not a Democratic vote and Republicans opposed. It was a unanimous vote. Unfortunately, we have not been able to go ahead and take that vote on the Senate floor. When I tried to put this in some perspective--I have served here in the Senate with three different Presidents in the White House. President Reagan, when he was in the White House--of course, much of the time that he was there the Republicans controlled the Senate, so an issue like this never arose. But there were 2 years during which he was President when the Democrats controlled the Senate. I am not aware of any occasion where we refused to allow a vote on one of his nominations because we disagreed with one of the policies that President Reagan was pursuing. We certainly disagreed with many of his policies, but I cannot recall any occasion where we refused to go ahead and permit a vote on one of his nominees in order to gain leverage and force him to change a policy. The same thing with President Bush. When President Bush was in office, of course the Democrats controlled the Senate during that time, and he nominated his Cabinet members. I do not recall any effort on the Democratic side to refuse to allow a vote on those Cabinet Members. I think everyone agreed that the election was over, the President had the right to choose his own Cabinet, and that we in the Senate could object to some of those Cabinet individuals and we could vote no on their nomination, but we certainly would not deny the President the right to a vote on those Cabinet members. So I see what is happening here with Alexis Herman's nomination as sort of unprecedented, clearly unprecedented in the time that I have been here in the Senate in the last 14 years. I understand that some of my colleagues are opposed to the administration's plans to issue an Executive order on project labor agreements. I know that many of my colleagues may have fundamental disagreements about the appropriateness of that Executive order. This is, in my view, simply not adequate grounds for refusing to go ahead and have a vote on his Cabinet nominee. I personally support the administration's proposal on project labor agreements for a variety of reasons. And we can have that debate when the issue comes up. As my friend from Wyoming, my colleague from Wyoming, indicates, there is a bill being considered. Fine. Let us get a piece of legislation out here. Let us have a vote on it. Let us do whatever and send it to the President, and perhaps we can persuade him to sign something if we can get agreement on something that seems reasonable. But the Executive order on project labor agreements has nothing to do with whether or not the President should be able to appoint his own Cabinet. We should allow him to do that. We should certainly allow a vote on the Senate floor on those Cabinet nominees. If the majority wants to turn down a nomination in order to make some point, clearly that is a course they can pursue. But to deny a vote on the Senate floor in order to try to register a complaint about the President's policy, I think, is improper. Ms. Herman presented herself extremely well to the Labor Committee. She honestly and fully answered all questions put to her. I think she won over several Senators who might have thought, going into that hearing, that they might not support her. She will be a strong advocate for working families. She will work hard, I am persuaded, to help our country prepare for the next century. Her record of public service, her record of caring about people on issues that come before the Department of Labor, which is unquestioned, her commitment to serving her country are the reasons why all of us, as I said on the Democratic and Republican side, in the committee joined to send her nomination to the floor. I know that if we get a vote on the Senate floor, it will be an overwhelming vote of support for this nominee because all of the Senators I have talked to believe she would be a good Secretary of Labor. The working families of this country deserve to have someone in that position which is a very important position at this time in our history. It is getting late in the legislative year. We need to go ahead and allow the President to put his own nominee in there so that he can proceed with his agenda. I say there will be many opportunities over the course of this year and next year throughout the 105th Congress where we will debate issues such as project labor agreements here on the Senate floor. I think that is entirely as it should be. But I do not think it is appropriate for us to proceed with business as usual on the Senate floor while refusing to allow a vote on the President's nominee for Secretary of Labor. So that is the basis for my objection to proceeding on this bill that is pending before the Senate today. I think it is a credible piece of legislation which should be debated and should be seriously considered by the Senate. But it should be seriously considered by the Senate in a circumstance where we are allowing the Executive branch and allowing the President to go ahead and name his Cabinet. It is too late in the year for us to be playing the kind of cynical game that is going on here in denying a vote for this Secretary of Labor. So I urge my colleagues to join on a bipartisan basis to bring that nomination to the floor and have that vote and then proceed to consideration of this other legislation and then proceed to the consideration of a great deal of other legislation that we should be getting on with. I think it is clear that the Senate is rudderless at this point. We have very little on the Senate agenda. We look ahead to the next 2 or 3 weeks, and I do not see a great deal of constructive activity going forward here unless there is much more in the planning than I am aware of. But I do think the least we can do is to go ahead and get one important nomination up and vote on it at the soonest date possible. Mr. President, I yield the floor and reserve the remainder of our time. Mr. COVERDELL addressed the Chair.

Mr. BINGAMAN. How much time remains on the Democratic side?

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, thank you. I thank the manager of the bill, the Senator from Delaware, for yielding me time. I also commend my colleague from Nebraska. I sat through a meeting with him and the Senator from Delaware at the White House where he asked some very penetrating questions. The President and the Vice President were there. The Secretary of State was there. Our Ambassador to the United Nations and a great many individuals who studied this treaty were there. And I am very pleased to see the decision that our colleague from Nebraska has made. Mr. President, a point that was made by the Senator from Nebraska I think needs to be foremost in our minds, and that is that this is different from all other treaties that have come before the Senate since I have been here, in that this does not ask us to give up any military capability that we have not already decided to give up. Most treaties involve an agreement by us to give up military capability in return for other nations giving up military capability. But we have decided unilaterally during the Reagan administration and have maintained the policy ever since then that we are going to renounce the use of chemical weapons, destroy our stockpile of chemical weapons. What this treaty does is try to find ways to bring other nations to that same decision. President Reagan did commit to that in the 1980's. President Bush reiterated that position. President Clinton has certainly done so as well. That is a central part of this discussion that needs to be kept in mind. A second part of the discussion that needs to be kept in mind is that by going ahead and ratifying this treaty, we give up no other tools that we have to prevent chemical attack or to retaliate against someone who might begin a chemical attack. This is not: Do you want to have the ability to retaliate, or, on the contrary, do you want the treaty? We are going to retain in the future all capabilities to retaliate which we presently have. We stated very definitively in one of the conditions that is attached to this treaty that we will use a massive force to respond to any chemical attack. We do not consider a chemical weapons attack by a potential adversary or adversary to be comparable to a conventional attack; therefore, people need to know that we are not giving up any of our abilities or resolve in that regard. I think these two factors are persuasive. We have chosen to destroy our own chemical weapons anyway, whether this treaty goes into effect or not. And, second, we maintain the ability to retaliate against any chemical weapons attack with all the strength that we have today. So what does the treaty buy us? It buys us an international agreement with other nations that will, hopefully, bring them also to give up their chemical weapons stockpiles. And it puts in place mechanisms to ensure that they do that. It buys us a guarantee that other nations which might have chosen to build chemical weapons will find it much more difficult to do so. It buys us a likelihood that if anyone decides to cheat on the treaty, we will have the ability to detect that. It enhances our intelligence-gathering capability substantially. As the Director of the CIA testified--he said this treaty gives us tools that we do not now have to look into places where we cannot now look. There have been some concerns raised. I will not go into those. I think they have been addressed extensively in the various conditions that have already been added to the treaty. Let me just say a few words about the amendments that are being proposed. The first amendment calls for us to withhold ratification until the Russian Duma agrees to the ratification and agrees to comply with an earlier statement about the destruction of chemical weapons. Mr. President, what this does is essentially make our foreign policy and our national policy hostage to what the hard-liners in the Russian Duma decide to do. It gives the Russians an excuse for not ratifying the treaty if we do not. I think it would be contrary to our best interests. A second amendment that will be offered, which I will oppose--or second effort to strike that I will support, deals with an amendment that would destroy the potential benefits of the Chemical Weapons Convention. It would require us to withhold ratification until various other countries, such as China, North Korea, Libya, and others, have ratified the treaty. Again, this provision would essentially shift to others the ability to define what is in our own best national interest. That cannot be a good thing for the United States. A third amendment deals with requiring us to reject inspectors from countries that have supported terrorism. Mr. President, we have the ability under the treaty to reject any inspectors we do not want to permit to come into this country and inspect. But it does not serve our interest to require, put into law a requirement, that certain inspectors be rejected at this early stage because, clearly, that will give them the same ability to reject our inspectors. That is not in our best interest. We will have the ability to decide any information that we will exchange with other countries. That has been a confusion about this treaty, Mr. President, that needs to be cleared up. When all the debate is concluded at the end of the day today, I believe it serves our national interest to go ahead and ratify the treaty. I believe it will contribute to a more peaceful world. Like all treaties, it lacks perfection. But the acid test is: Will this generation of Americans and future generations of Americans be less likely to confront chemical weapons on the battlefield or in a civilian context if this treaty is ratified? In my view, it is clear that they will be less likely to confront chemical weapons if we go ahead today. I hope very much my colleagues will join in supporting the treaty. Mr. President, I yield the floor and suggest the absence of a quorum.

Mr. BINGAMAN. I withhold.

Mr. BINGAMAN

Mr. BINGAMAN. I thank the Chair. Mr. President, let me, first of all, compliment my colleague from Michigan on his excellent statement. I agree with each of his points. It is past time for the Senate to bring this issue to the floor for debate, to debate it seriously, to make whatever modifications or changes or conditions the Senate believes is appropriate, if any, and to get on with ratifying the Chemical Weapons Convention. Mr. President, one of the challenges in discussing the Chemical Weapons Convention is to figure out how to bring this home to the average American that this is an issue and a concern that is important to them. Many people say, well, this is long term, this is international, this doesn't relate to me right here in River City, or Santa Fe, NM, or Silver City, NM, or wherever their hometown happens to be. But, in fact, the convention intends to reduce the likelihood that any of our troops or any American civilians in the future will be injured or killed as a result of chemical weapons. The history of the use of chemical weapons is better known by others than by me. My understanding is that the first time there was significant use of chemical weapons was in the First World War. There have been instances since then. We have heard much in the news recently, for example, about the injuries that some of our personnel in the gulf war encountered by virtue of the accidental destruction of Iraqi chemical weapons by some of our own military actions. So the issue is real, and the question is, what can we do as a nation? What can we do as a Senate to lessen the risk that chemical weapons will, in fact, injure Americans in the future? I think ratifying this treaty at this time is clearly the most important thing we can do. I hope very much that we go ahead and enter a into a unanimous- consent agreement today and begin formal debate of the treaty. We are not in formal debate as of yet because we have been unable to get agreement among all Senators to bring the treaty to the floor. We need to get that agreement and bring it to the floor, and we need to go ahead with the debate. The reason that it is time-sensitive, Mr. President, is that the treaty goes into effect on the 29th of this month. Now, some say it doesn't matter whether we are part of it at the time it goes into effect or whether we are not part of it. They say we can come along later. The problem is that international agreements have been made for the treaty to go into effect. American experts have been working with experts from other countries in putting together protocols and plans for implementing this treaty and the inspections that would be made under the treaty. All of that has been ongoing. If we are not part of the initial group of ratifying nations--it's a very large group; I think 161 nations have signed this treaty. If we are not part of that group when the treaty goes into effect, then the experts from our country that have been involved in establishing protocols and plans for inspection will be excluded from management and inspection teams and others will be put in their place. Perhaps at a later date we could join, but, clearly, it is not in our interest to have an international treaty of this importance begin without us being a part of it. I also point out an obvious point, which I am sure has been made many times in this debate. The sanctions called for in this treaty against countries that are not party to the treaty will be imposed on our own chemical companies. Many of the objections that have been raised about the treaty are, in fact, in my view, groundless for the simple reason that our own chemical manufacturers in this country have come out in strong support of the treaty. They want to be part of this. They understand the inspections that will be taking place. They readily subject themselves to those inspections, and they do not want sanctions imposed upon them that keep them from selling chemicals that can be used for chemical weapons, but can also have commercial uses at the same time. They would like to continue to be major participants in the world market in chemicals. They estimate that the loss to our chemical manufacturers could be around $600 million per year if we don't ratify the treaty and if sanctions are imposed on us because we are outside the treaty. Mr. President, there are various objections that have been raised. In my opinion, I have never seen a treaty where there has been more effort to accommodate very groundless objections. We have some objections which are not groundless--I will acknowledge that--and concerns that are valid and need to be considered and addressed. We are doing that. But many of the objections that have been raised, in my opinion, are really grasping at straws by people who are trying to find some basis upon which to oppose this treaty. The context in which this needs to be considered--this, again, has been said many times here, and I have said it myself--is that we passed a law while President Reagan was in the White House that renounced the use of chemical weapons by this country and which put us on a path to destroy our own chemical weapons capability. President Reagan signed that law. That has been the policy of our Government through the Reagan administration, through the Bush administration, through the Clinton administration, and now into the second Clinton administration. We have unilaterally made the decision that we do not need chemical weapons in order to look out for national security concerns. We have many other ways to deal with countries that would use chemical weapons. By signing this agreement, by going ahead and ratifying the Chemical Weapons Convention, we are not giving up any of the other arrows in our quiver, so to speak. We have the ability to retaliate against the use of chemical weapons in any way we determine to retaliate, whether we are a signatory or not. So we do not lose anything by ratifying it and becoming part of this convention. We gain, however, a substantial amount. For that reason, I think the treaty should go forward. Since we have unilaterally decided not to have chemical weapons, not to produce chemical weapons, not to maintain a stockpile of chemical weapons, and not to use chemical weapons in the future, how can it not be in our interest to try to ensure that other countries make that same decision? How can it not be in our interest to join with international inspection groups to investigate and ascertain that the countries that are signatories to this treaty do not in fact violate the convention? As I indicated before, our manufacturers agree. If you want to inspect us, come on in. We are glad to have you come in and inspect our plants. We are not going to have chemical weapons, we are not going to stockpile chemical weapons, and, therefore, come on in and investigate us. If we ratify this treaty, we can be part of the inspection teams that go to other countries to make the same determination. Some people say, ``Well, the problem with it is that not all nations are going to sign onto the treaty.'' That is true. Not all nations are. That is very, very true. To deal with that circumstance, the treaty calls for sanctions against those countries that don't ratify the treaty. We cannot enforce the treaty against countries that don't ratify the treaty, but we can impose sanctions upon their ability to purchase or to sell chemicals that have dual use--that can be used in chemical weapons as well as in commercial purposes. That is a significant tool that this convention will give us. I do not know of another circumstance--at least in the time I have been here in the Senate--where we have made the unilateral decision to take action that a treaty calls for us to take. For us to now say, ``OK, we have already decided to take the actions that the treaty calls for us to take, but we do not know whether we want to go ahead and ratify the treaty so that others also will take those same actions'' is nonsensical to me. We need to recognize that in the large scheme of things, this country needs to provide leadership in the world. That leadership includes ratifying this treaty and going forward with putting the protocols for its enforcement in place and participating in the inspection teams required for its implementation. That is exactly what is required. There have been endless negotiations within the Foreign Relations Committee in an effort to accommodate concerns that have been raised. I was not party to those negotiations. I have seen the results of them. Quite frankly, I am amazed at the extent of the conditions that we have agreed should be adopted to allay concerns of different Members. I think that is fine. I have no problem with any of the conditions. I also support whatever is acceptable to the administration, which has primary authority in this area and primary responsibility to enforce the treaty. If they believe these conditions are acceptable, then fine, they are acceptable to me as well. But we do need to get on with ratifying the treaty. We need to get on with providing the additional confidence we can to the American public and to assure them that their security concerns are being dealt with responsibly. I believe very strongly that this treaty is in the best interest of our country and the best interest of the people of my State. I think it would be a travesty for us to fail to ratify it, and particularly it would be a travesty if we failed to even bring it before the Senate for a vote. That has not happened. I understand the majority leader has worked very diligently to bring that about, and I believe he is on the verge of doing so. I commend him for that. But the reality of the situation is very straightforward--this treaty needs to be ratified. It needs to be ratified soon. The clock is ticking. Our leadership position in the world is at stake, and the security of future generations is also at stake. I see that we have both Senators from Massachusetts ready to speak. I do not want to delay them. I ask if either of them wishes to speak on the treaty at this point. How much time remains on the treaty?

Mr. BINGAMAN. How much time remains?

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I rise today to introduce the Medical Nutrition Therapy Act of 1997 on behalf of myself, my friend and colleague from Idaho, Senator Craig, and a bipartisan group of additional Senators. This bipartisan measure provides for coverage under part B of the Medicare Program for medical nutrition therapy services by a registered dietitian. Medical nutrition therapy is generally defined as the assessment of patient nutritional status followed by therapy, ranging from diet modification to administration of specialized nutrition therapies such as intravenous or tube feedings. It has proven to be a medically necessary and cost-effective way of treating and controlling many disease entities such as diabetes, renal disease, cardiovascular disease, and severe burns. Currently, there is no consistent part B coverage policy for medical nutrition and this legislation will bring needed uniformity to the delivery of this important care, as well as save taxpayer money. Coverage for medical nutrition therapy can save money by reducing hospital admissions, shortening hospitals stays, decreasing the number of complications, and reducing the need for physician followup visits. The treatment of patients with diabetes and cardiovascular disease account for a full 60 percent of Medicare expenditures. I want to use diabetes as an example for the need for this legislation. There are very few families who are not touched by diabetes. The burden of diabetes is disproportionately high among ethnic minorities in the Unites States. According to the American Journal of Epidemiology, mortality due to diabetes is higher nationwide among blacks than whites. It is higher among American Indians than among any other ethnic group. In my State of New Mexico, native Americans are experiencing an epidemic of type II diabetes. Medical nutrition therapy is integral to their diabetes care. In fact, information from the Indian Health Service shows that medical nutrition therapy provided by professional dietitians results in significant improvements in medical outcomes in people with type II diabetes. For example, complications of diabetes such as end stage renal failure that leads to dialysis can be prevented with adequate intervention. Currently, the number of dialysis patients in the Navajo population is doubling every 5 years. Mr. President, we must place our dollars in the effective, preventive treatment of medical nutrition therapy rather than face the grim reality of having to continue to build new dialysis units. Ensuring the solvency of the Medicare part A trust fund is one of the most difficult challenges and one that calls for creative, effective solutions. Coverage for medical nutrition therapy is one important way to help address that challenge. It is exactly the type of cost- effective care we should encourage. It will satisfy two of our most important priorities in Medicare: Providing program savings while maintaining a high level of quality care. Mr. President, I ask unanimous consent that the text of this bill be printed in the Record.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I rise today to introduce the Medical Nutrition Therapy Act of 1997 on behalf of myself, my friend and colleague from Idaho, Senator Craig, and a bipartisan group of additional Senators. This bipartisan measure provides for coverage under part B of the Medicare Program for medical nutrition therapy services by a registered dietitian. Medical nutrition therapy is generally defined as the assessment of patient nutritional status followed by therapy, ranging from diet modification to administration of specialized nutrition therapies such as intravenous or tube feedings. It has proven to be a medically necessary and cost-effective way of treating and controlling many disease entities such as diabetes, renal disease, cardiovascular disease, and severe burns. Currently, there is no consistent part B coverage policy for medical nutrition and this legislation will bring needed uniformity to the delivery of this important care, as well as save taxpayer money. Coverage for medical nutrition therapy can save money by reducing hospital admissions, shortening hospitals stays, decreasing the number of complications, and reducing the need for physician followup visits. The treatment of patients with diabetes and cardiovascular disease account for a full 60 percent of Medicare expenditures. I want to use diabetes as an example for the need for this legislation. There are very few families who are not touched by diabetes. The burden of diabetes is disproportionately high among ethnic minorities in the Unites States. According to the American Journal of Epidemiology, mortality due to diabetes is higher nationwide among blacks than whites. It is higher among American Indians than among any other ethnic group. In my State of New Mexico, native Americans are experiencing an epidemic of type II diabetes. Medical nutrition therapy is integral to their diabetes care. In fact, information from the Indian Health Service shows that medical nutrition therapy provided by professional dietitians results in significant improvements in medical outcomes in people with type II diabetes. For example, complications of diabetes such as end stage renal failure that leads to dialysis can be prevented with adequate intervention. Currently, the number of dialysis patients in the Navajo population is doubling every 5 years. Mr. President, we must place our dollars in the effective, preventive treatment of medical nutrition therapy rather than face the grim reality of having to continue to build new dialysis units. Ensuring the solvency of the Medicare part A trust fund is one of the most difficult challenges and one that calls for creative, effective solutions. Coverage for medical nutrition therapy is one important way to help address that challenge. It is exactly the type of cost- effective care we should encourage. It will satisfy two of our most important priorities in Medicare: Providing program savings while maintaining a high level of quality care. Mr. President, I ask unanimous consent that the text of this bill be printed in the Record.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, the amendment I have offered goes to the heart of a flaw in S. 104. Without the amendment that I am offering, S. 104 will send nuclear waste to the site right next to Yucca Mountain even if Yucca Mountain fails as the geologic repository. We will then have a permanent aboveground repository rather than a geologic repository and will be able to shuffle off the responsibility for dealing with nuclear waste to our children and grandchildren. There is an attempt in the bill to disguise this unfair policy with a provision that allows the President to send waste somewhere else if we pass a law to that effect within 24 months. But we are not going to pass a new nuclear waste law in 24 months especially if the reward for not doing so is to keep sending all the waste to Nevada where we can forget about it. My amendment stops construction and operation of an interim storage site in Nevada if Yucca Mountain fails as a candidate repository at any time before it opens. If Yucca Mountain is not suitable as a repository, then it is not the right place for interim storage. We must have certainty that our ultimate solution for nuclear waste is based on having a geologic repository and that any action on an interim storage facility rises or falls with the fate of a permanent facility. I urge my colleagues to support the amendment.

Mr. BINGAMAN. Mr. President, first, I ask unanimous consent that Anne Marie Murphy, who is a Congressional Fellow on Senator Durbin's staff, be granted privileges of the floor today, April 15.

Mr. BINGAMAN

Mr. BINGAMAN. I ask unanimous consent that the Senator from Alaska, of course, be given equal time, if he would like that.

Mr. BINGAMAN. Mr. President, the issue of disposal of spent nuclear fuels and high-level radioactive waste has been debated in this Senate in one form or another ever since I arrived here some 14\1/2\ years ago. Nuclear waste is a serious issue. It demands serious attention by all Senators. It is a problem that is national in scope. It is also a particular responsibility of the Federal Government. After all, it was the Federal Government that proposed, beginning with the Atoms for Peace Program in the Eisenhower administration, to develop the peaceful uses of nuclear power. The problems of disposal of spent nuclear fuel that we face today are the legacy of our past laws and decisions. I am not going to characterize the current situation as a crisis. There is too much hype already about disposal of nuclear waste, from all sides of the debate. But there are serious problems facing the program that merit attention now, in this Congress. I have an important disagreement with the chairman of the Senate Energy Committee about the substitute amendment that is before the Senate today. I believe that it is fatally flawed on two counts, and my amendment is intended to address this fatal flaw. But I also believe that the chairman is right when he says that simply continuing with the current situation is not acceptable. Let me point out a number of issues that call out for congressional action at this time. First, ratepayers have paid over $8 billion in fees to the nuclear waste fund and earned about $2 billion in interest. Only about $5 billion of this money has been spent on the program. Our current budget rules and accounting principles make it nearly impossible to give the program, each year, the appropriations that it deserves. For example, in fiscal year 1996, the President asked for $640 million for the DOE Yucca Mountain Program. Congress appropriated only $315 million--half of the request. As a result, the program had to abandon a comprehensive program plan that was less than 2 years old, and go through yet one more strategic planning exercise to figure out how to cope with an inadequate funding base. There is no incentive for the President to even make a reasonable budget request at this point. Not surprisingly, the utilities and public utility commissions, who are paying in $600 million each year and seeing only a fraction of that getting spent, are upset with this state of affairs. They have every right to be. A second reason why action is required in this Congress is that DOE won't meet its January 31, 1998, deadline to dispose of spent nuclear reactor fuel and is way behind schedule in building a repository. Utilities and ratepayers will have to pay for onsite storage for spent fuel after 1998 in addition to what they would otherwise have needed if DOE had met its 1998 deadline. While many thought that 1998 was unrealistic when it was first picked as a target date, no one thought that we would be missing it by so wide a margin. Some relief is now in order. A third problem that needs to be addressed in this Congress is that there will never be a repository if EPA doesn't issue a radiation standard for it. EPA is right in the middle of the critical path for this program, and keeps missing deadline after deadline. Part of the blame lies at EPA--it is hard to detect any sense of urgency on their part. But an important part of the blame lies in the inherent difficulty of writing this standard and having it stand up to scrutiny in the courts. Let me remind my colleagues that in 1985, EPA did promulgate a radiation standard for the repository. Two years later, it was stuck down in court. Without some statutory help to clarify issues, I believe that EPA is destined to face the same fate again. For example, according to the National Academy of Sciences, there is no technical basis for incorporating human intrusion into a repository standard, because any analysis of human intrusion, in their words, is ``driven by unknowable factors.'' How will EPA successfully defend a new standard in court, if it has to depend on the unknowable? Further, the underlying law governing EPA's development of a repository standard currently places EPA in a legal catch-22. The law requires EPA both to promulgate a dose-based standard and to follow the recommendations of the National Academy of Sciences. But the National Academy of Sciences has recommended against promulgating a does-based standard. Without additional statutory guidance, how does EPA get out of that box? If we sit by and do nothing, we are setting EPA up for certain failure in developing a repository standard over the next few years. The final problem that I want to cite which justifies action and leads me to conclude that we need to have action in this Congress is that there is a lawsuit pending against DOE that seeks to escrow the current nuclear waste fee outside the Government. If the court decides that there is liability on DOE's part, there may be other payments for damages that no one can put a price tag on right now. No one can say what the court will do--but it has surprised the Government twice already with its rulings in favor of the utilities. One thing is clear though. There is a sizable potential for major damage, and perhaps fatal damage, to the nuclear waste program over the next 12 months. The administration has taken the view that it is premature to consider legislation on this topic at this time, and that Congress should wait until 1999, when the viability assessment of the Yucca Mountain site is complete. The list of problems that I have just gone through, and it is far from a complete list, won't age gracefully during the next 2 years. If we don't fix some of them fairly quickly, I believe that we will be wasting a substantial amount of taxpayers' money. I cannot support a same time, next Congress approach to clear and serious difficulties in this program. Further, the administration's emphasis on the viability assessment as some sort of touchstone for further congressional action greatly exaggerates the value of the viability assessment. The senior Senator from Nevada has reminded us repeatedly, in this debate, that the viability assessment is not a suitability determination. He is absolutely right. All the scientists involved in the viability assessment agree with him. The viability assessment will not tell us if Yucca Mountain is a good place for a geologic repository. The viability assessment will only be useful as a decisionmaking guide if Yucca Mountain is so terrible a site for a repository that even a small amount of scientific data is sufficient to make an overwhelming case that we should give up at that site and look elsewhere. If the viability assessment will not tell us much, if anything, about the suitability of Yucca Mountain for a repository, then why is the viability assessment in the critical path for deciding what we should legislate here in this Congress? I think the problems facing the Yucca Mountain Program speak for themselves. They will not wait another 2 years to be resolved and neither should we. Having agreed with the chairman of the Senate Energy Committee on the need for legislation at this time, let me say that in one important respect I cannot support the proposal he has presented to the Senate. I opposed S. 1936 last year, and I opposed S. 104 this year in its original form when we voted on it in committee. Although the chairman's substitute amendment today is a vast improvement over last year's bill, it still contains fatal flaws that force me to continue to oppose it. Before I talk about the fatal flaws in the bill, it is only fair to acknowledge the good-faith cooperation that we have had from the chairman of the Senate Energy Committee in addressing, since the committee's markup, many of the problems that the administration identified in last year's bill. The chairman said at the markup that he was open to suggestions as to how to make the bill better and that he wanted to have a constructive dialog, and he meant it. I am glad that I took him at his word for he and his staff have negotiated with me and my staff in very good faith, and anyone who looks at the substitute amendment that is before us today and compares it to the original bill has to admit that, while crucial flaws remain, major progress has been made on a number of topics toward getting a good bill on this topic. Almost all the problems that have been aired in the Chamber in this debate and in the veto threat issued by the administration have been addressed in one way or another. Mr. President, I would like to describe eight areas in which the chairman proved to be open and flexible to my suggestions for how to improve S. 104 and address major areas of concern raised by the administration and others. First, radiation standard. Few provisions of last years nuclear waste bill, S. 1936, and this year's bill, S. 104, have received more criticism than the statutory radiation standard of 100 millirems. Every Member of the Senate has received, over the last week, numerous letters opposing S. 104 from environmental, religious, and public advocacy groups. These letters consistently emphasize the fact that the 100 millirem standard in S.104 is 4 times higher than similar radiation standards for other nuclear facilities. The new radiation standard in the substitute amendment, which is identical to the proposal I offered in the Energy Committee, resolves this issue. It is a risk-based standard that is equivalent to about 25 millirems. It gives statutory expression to the major recommendations of the National Academy of Sciences on every issue except one. The National Academy recommended that the radiation standard be applied at the time of maximum risk, but this is 80,000 to 250,000 years from now. In a licensing proceeding, which is the venue in which any standard will be applied, proving anything with certainty about the world 80,000 years from now--160 times greater than all of recorded history--is a virtual impossibility. So the substitute amendment uses a timeframe for assessing compliance in the licensing proceeding of 10,000 years, the same timeframe that EPA has proposed to use in the past. The substitute also requires a report to Congress from the Nuclear Regulatory Commission on the predicted compliance of the repository at the time of maximum risk, and delays the effective date of the construction license until Congress has had 90 days to review the commission's report. A similar approach is taken to the question of human intrusion, which the Academy states is ``driven by unknowable factors.'' I believe that any objective observer would conclude that the radiation standard in the substitute amendment resolves all of the objections that were raised against the old 100 millirem standard. Second, NEPA. S. 104 was criticized for running roughshod over the NEPA process. Nowhere was this more apparent than in the licensing procedure for the interim storage facility. NRC regulations require it to prepare an environmental impact statement for any interim storage facility. Yet the time lines in the S. 104, as introduced, would have precluded the commission from carrying out a meaningful EIS. NRC regulations also clearly state that beginning construction of an interim storage facility prior to completion, by the NRC, of its NEPA process is, all by itself, grounds for the commission to refuse to issue such a license. Yet S. 104, as introduced, instructed DOE to start construction as soon as it submits a license application. In committee, I offered an amendment to correct these problems. The substitute amendment adopts my approach. Under the substitute amendment, no construction of an interim storage facility occurs until the NRC has completed the NEPA process called for under its regulations. Third, transportation planning. We have heard a lot of discussion about transportation risks in this debate so far. Senator Wyden proposed an amendment that was accepted in the committee's markup that strengthened the provisions of the bill relating to transportation planning. I supported his amendment and he deserves great credit for working closely with his own State of Oregon and with the Western Governors Association, which includes New Mexico as a member, in strengthening the bill in this important area. One goal that he was unable to achieve prior to committee markup was to provide for 3 years of funding and assistance to States and localities, to enable them to be up-to-speed to handle any contingencies related to transportation, no matter how remote their probability. The reason that it was rejected was because it would have conflicted with the headlines in the bill as it stood at that time. After his staff was briefed about progress in my discussions on timing issues, he requested that I explore getting them the third year of training and assistance. Senator Murkowski was agreeable to Senator Wyden's new request, and as a result, every place through which nuclear waste may be shipped will now have 50 percent more training and assistance. I think this is a real improvement. Fourth, timing. S. 104 was criticized for its unrealistic deadlines that were virtually impossible to meet. The new deadlines in the substitute amendment are virtually the same as those in the proposal that I offered in committee. They are drawn from the current DOE program plan and from technical discussions by my staff with the actual persons at DOE and the NRC who would be responsible for meeting those deadlines. The resulting deadlines are very realistic, and in some cases have extra scheduling cushion built in. Providing enough time for DOE and the NRC to do their work properly has the advantage of postponing construction and operation of an interim storage site in Nevada until after the scheduled record of decision on the permanent repository--September 2000. Under my proposal, which Senator Murkowski agreed to, the interim storage facility license is issued 9 months after DOE has applied for construction authorization for the permanent repository. In other words, we don't put the waste on the road to Nevada until well after the time at which DOE has determined, as part of its own NEPA process, that Yucca Mountain is suitable. A final advantage of the way my proposal sequences the interim storage facility and the permanent repository is the elimination of much of the competition between the two for financial resources. In the period 1999-2001, DOE can concentrate on repository characterization and on putting together a high-quality repository EIS and license application, while the NRC is working on the interim storage facility license application. In the period 2002-2005, DOE can concentrate on interim storage facility construction and initial operation while the NRC is reviewing the repository license application. Fifth, size of the interim storage facility. In S. 104, as introduced, the capacity of the interim storage facility grows to either 40,000 metric tons of spent fuel in December of 2002, or, if the Secretary is late in submitting a license application for the permanent repository or in opening the repository for operations, 60,000 metric tons of spent fuel. This extra 20,000 metric tons of capacity is added even if the Secretary of Energy does not ask for it or think it is necessary. We accumulated 32,000 metric tons of spent fuel over the last 40 years. I was concerned that an aboveground storage facility that had a capacity of twice today's spent fuel inventory, and a licensing term of 100 years, with indefinite renewals into the 22d and 23d centuries, would be, in reality, more like a permanent aboveground repository, than an interim facility. I proposed, and Senator Murkowski accepted, a linkage between the size of the interim storage facility and the status of the permanent repository. Before the permanent repository is in operation, the interim storage facility capacity is limited to just what is needed to get to that date. It is a bridge, not a replacement. A second part of my proposal was to allow the capacity limit of the interim storage facility to grow, only after the repository is licensed to operate by the NRC, and only for the purposes of operating the interim storage facility as an integral part of a total system with the repository. This, too, was accepted. The adoption of these changes improve the bill, but only represent a partial success in terms of establishing the correct relationship between the interim storage facility and the permanent repository. My remaining amendment to this substitute amendment is intended to finish the job on getting the right relationship between the two facilities. Sixth, preemption. S. 104, as introduced, contained a very worrisome provision preempting all Federal, State, and local laws on the basis of a novel standard of ``inconsistent or duplicative.'' Removing this preemption provision was a key demand in the administration's veto threat. At my suggestion, we have moved to a preemption provision that restates the status quo in this area of law. The first part of the provision restates the two fundamental Supreme Court rulings on preemption of State requirements by Federal law. Its language is identical to that found in the Hazardous Materials Transportation Act. The second part of the provision is also modeled after the HAZMAT Act. It lists five areas where Congress intends this act to be the last word. Three of the five are modeled after the areas listed in the HAZMAT Act. The other two topic areas for preemption are the land transfer provisions of the Act and the siting and licensing of the repository and interim storage facility. Neither topic breaks new ground. Thus, we have taken a very objectionable provision and removed everything that was objectionable about it. Seventh, financing. We have heard a lot, over the last few days, about the problems of S. 104 in terms of how it pays for the nuclear waste program. The junior Senator from Nevada has made some pretty good points about how the bill, as introduced, transfers the burden of paying for the repository from the beneficiaries of nuclear power to the general taxpayer. This issue has been of deep concern to me, as well. Fixing this problem is not easy, as has been evidenced by the fact that we have had additional amendments on this topic during the floor debate. The Nuclear Waste Fund is caught, along with other trust funds, in a trap of budgetary rules and accounting principles that have grown up over the years and that, in cases like this one, yield results that defy common sense. Getting completely out of the trap requires cooperation from either the administration or the Budget Committee, and neither is willing to help. There is a partial solution, though, that puts the program on a sound financial basis outside the current scoring window and that can be implemented for 4 years during the scoring window. This solution has three parts. The first part is a fee that is tied to appropriations, to remove the disincentive that now exists to fully fund the program. In the original substitute amendment, there was no cap on this fee. Thus, if the Congress were to appropriate $800 million of civilian spending to the program, the fee would rise to about 1.3 mills per kilowatt-hour. I believe that it is appropriate to go over the 1-mill limit, if the ratepayers are getting what they are paying for. The second part of the partial solution is a second fee that kicks in if the level appropriated is less than 1 mill per kilowatt-hour. This second fee is set at the difference between the appropriations-based fee and the 1.0 mill per kilowatt-hour level. The second fee goes into the nuclear waste fund, to build the needed surplus for the last 40 years of the program. The third part of the partial solution is an expedited procedure to approve any recommendation by the Secretary to adjust the 1.0 mill per kilowatt-hour level used to calculate the second fee. If we need to be collecting a larger second fee to ensure the integrity of the Nuclear Waste Fund, the Secretary's proposal will make it to the floor for expeditious consideration. This agreement, as I originally proposed it, completely answers the concerns raised by the junior Senator from Nevada. Instead of a 1.0 mill per kilowatt-hour cap, we have a floor that the Secretary can propose to raise, to ensure that the funds needed to keep the nuclear waste fund solvent are always there. Instead of transferring liability to the general taxpayer and providing corporate welfare to the nuclear industry, my original proposal ensures that the industry continues to pay its fair share of the costs of the repository. Eighth, lawsuit. The last area of agreement that I want to discuss is a commitment to discuss the current lawsuit by the nuclear industry in any conference on the bill. The commitment is in the form of a sense of the Senate that the DOE, the utilities, and the public utility commissions should settle the lawsuit before we enact this bill into law. The idea behind this sense of the Senate language is simple. The utilities and public utility commissions have a two-track strategy to solve their problems. One is legislative. The other is judicial. There is nothing wrong with pursuing both tracks at this time, since it is not clear that the legislative track will produce a public law anytime soon. But if the utilities and the public utility commissions do succeed in getting relief from Congress and the President, in the form of nuclear waste legislation that delivers an interim storage facility on a reasonable timeframe and that fixes the nuclear waste fee problem, then the lawsuit against the Federal Government should go away. The principle that I believe that the Senate should take to conference, then, is that you can't have your cake and eat it too. You can't get a complete legislative overhaul of the nuclear waste program and then go and try to improve on it, or blow it up, in the D.C. Circuit Court of Appeals. I recognize that we are dealing, in the lawsuit, with vested contractual rights, and that our options to deal with the lawsuit in legislation may ultimately be somewhat limited. But I believe that we should put all parties on notice that the Senate is serious about a cooperative solution to the problem, and that they should be, too. Mr. President, I cannot say if the administration thinks that its concerns have been resolved. I am still waiting to hear some definitive statement from the administration on the amendments that we offered in committee a month ago and also a definitive statement on their position with regard to the amendment I am offering today. Despite the substantial progress toward making S. 104 a better bill, a key flaw remains in the substitute. It is an issue of the highest importance. It is an issue of whether S. 104, if enacted, would lead to the abandonment of our fundamental policy of geologic storage of nuclear waste in the circumstance where Yucca Mountain would fail as a candidate for a repository. This scenario can occur and it does occur in the substitute amendment if the proper relationship between the interim storage facility and the permanent geologic repository is not maintained. So what is this proper relationship that I think is so important? The current Nuclear Waste Policy Act of 1982 provides for a facility similar to the interim storage facility that is provided for in this bill. In the 1982 act it was called the monitored retrievable storage facility or MRS. We never found a place to put an MRS, but the restrictions on the MRS in current law--which we passed in 1982--are instructive as a guide to how we need to think about such facilities. In current law, construction of an MRS cannot begin until the permanent repository has a construction license. In current law, construction of the MRS or acceptance of spent nuclear fuel at the MRS is prohibited during any time in which the repository license is revoked or construction of the repository, that is, the permanent repository, ceases. In current law, the MRS has a capacity limit tied to the opening of the repository. These restrictions are all safeguards to prevent the MRS from turning into a de facto permanent above-ground repository. In the case of the current bill, we are allowing the interim storage facility to proceed in advance of the licensing of the Yucca Mountain facility, and I agree with that. This is a defensible step in light of the delays in the repository program and the need for such a facility to be in full operation 10 years from now. But the decision to allow the interim storage facility to get ahead of the permanent repository makes the issue of safeguards to prevent the interim storage facility from turning into a de facto permanent repository all the more important. On the issue of tying the capacity limit of the interim storage facility to the opening of the permanent repository, there is a provision in the substitute amendment that works providing that the substitute also addresses the issue of what happens to the interim storage facility if Yucca Mountain fails to pass muster at some point in the process. And here is where the rub is. The substitute does not address the issue in a complete fashion. As I see it, there are four points in the process where Yucca Mountain can fail. There must be clarity on what happens to any interim storage facility in each of those cases. The first point in the process is already covered in the bill. It is the viability assessment. As I mentioned earlier, if Yucca Mountain is an absolutely terrible place technically to put a repository, we will probably find out at this stage. The substitute amendment provides that if the President finds, based on the viability assessment, that the Yucca Mountain site is unsuitable for a repository, then he and the Congress have 24 months to find another interim storage facility site or the site in Nevada right next to Yucca Mountain is chosen by operation of law. I will come back to the automatic default to Nevada in just a moment. The second point in the process where Yucca Mountain can possibly fail as a candidate repository occurs before the Secretary submits the license application to the NRC, the Nuclear Regulatory Commission. During the NEPA process for the repository, the Secretary will have to make and defend a suitability determination. If the Secretary determines that Yucca Mountain is unsuitable or cannot meet NRC licensing standards, then, according to the substitute amendment, the Secretary must notify Congress and the State of Nevada to cease all activities at the repository site and report to the Congress within 6 months on the need for additional legislation dealing with nuclear waste. What the substitute amendment remains silent on is this question: What happens to the interim storage facility in this case? The Secretary has already submitted a license application to the Nuclear Regulatory Commission, but no construction has started as yet. In that case, the silence in the substitute amendment means that the Secretary is authorized and in fact is required to go forward in Nevada. In fact, the provisions of the substitute amendment, perhaps unintentionally, turn the interim storage facility into a runaway train. Recall that the statutory limit for the interim storage facility in the substitute is tied to what is needed to get you to the date when the permanent repository opens. If the permanent repository suddenly moves 30 years into the future because of a decision that Yucca Mountain is unsuitable, these provisions could be construed as sanctioning moving an extra 90,000 metric tons of spent fuel to Nevada. This is unacceptable. The first provision added to the substitute by my amendment would fix this problem. It terminates the Secretary's authority to move forward on an interim storage facility at the site in Nevada if Yucca Mountain fails as a candidate for a permanent repository during the process of making the suitability determination. The Secretary must then make a preliminary designation of one or more alternative sites within the next 24 months. The third and fourth points for potential failure of Yucca Mountain as a repository candidate is during the two-step Nuclear Regulatory Commission licensing process. Suppose that during this process the NRC concludes it is not possible to issue a license for a repository at Yucca Mountain. Under the substitute amendment, the construction and operation of the interim storage facility continue unabated. So the second provision added to the substitute by the amendment that I am offering today would try to fix this problem. If Yucca Mountain fails to pass muster at the NRC, then all construction and operation of the interim storage facility is stopped except for safety-related surveillance and maintenance. As with the previous case, the Secretary must then make a preliminary designation of one or more sites within the next 24 months and must, in addition, make recommendations to Congress about what to do with the interim storage facility. But in this case, it takes the enactment of another law by Congress to restore any authority to resume construction or resume shipments to the interim storage facility. Could there be nuclear waste stored at the interim storage facility at this point? Yes, there could. If the NRC concludes that Yucca Mountain cannot be licensed after the first 20 months of its deliberations on DOE's license application for the repository, then the interim storage facility will contain some amount of spent nuclear fuel. The same situation can also occur under current law. It is possible for the MRS to have its operation suspended because of failure to license a permanent repository after the MRS has received spent nuclear fuel. But if you are troubled by the fact that there is a possibility that waste could be shipped to Nevada before the geologic repository is open for shipments, then you are against one of the fundamental premises of this bill; that is, that it is acceptable to provide for an interim storage solution linked to the repository prior to the opening of the repository. Whether or not you think this is acceptable is, of course, for each Senator to decide. If the program were close to a successful opening of the repository today, I would personally be in favor of waiting a few more years. But since the date is now 2010 or potentially beyond that date if we do not fix some of the other problems with the program in this bill, I believe that an interim storage solution is acceptable with the right safeguards. In the case of the amendment that I am offering here, one of the safeguards is to face this issue squarely and to make Congress decide what to do and then to enact another law before the Secretary can act. In this way at every stage in the process where Yucca Mountain can fail, my amendment would stop the interim storage facility in its tracks or cancel it outright. The probability of Yucca Mountain failing is probably not great, particularly after the suitability determination by the Department of Energy in the year 2000. But that probability is also not zero. The 5- mile tunnel has been dug through the mountain. There is more water inside the mountain than was previously thought to be the case. Maybe this is significant; maybe it is not. There is a second east-west tunnel that will go through the exact area under the western side of the mountain where most of the waste will be placed. The east-west crossing will not occur until after the viability assessment but is critical to the suitability determination. The western slope of the mountain receives more rainfall than the eastern side. Does this mean that there will be even more water under the mountain where the waste will be placed? Enough pause to make the mountain fail as a repository site? No one knows at this point. That is why we are characterizing the mountain in the first place. The ultimate answer will not be known until after the window, in the current substitute amendment, for making a final and irrevocable decision on proceeding with the interim storage facility in Nevada. Mr. President, in addition to the problem in the substitute of not permitting us to deal with the failure of Yucca Mountain as a candidate site at any point at which it can occur, there is the problem of the automatic default to Nevada if another site for an interim storage facility is not picked within 24 months. Under the substitute amendment, an interim storage site in Nevada is established regardless of whether the Yucca Mountain site is suitable or not, and the site is changed only if Congress and the President can produce another law providing for an alternative site within 24 months. Realistically, Mr. President, passing another nuclear waste law from scratch in 24 months is not going to happen. Consider that we have been working on this bill and its predecessors for substantially longer than that. The nuclear industry spent a great deal lobbying this effort in the last Congress and came up with no solution. Does anybody believe that they would make any kind of effort like that if there was an easy answer to their problem, which this bill now provides no matter what happens? So, the provision contained in subsection 204(C)(2) of the bill is fatally flawed on two counts. If Yucca Mountain fails, the practical result is that the waste goes to Nevada, no matter what. I do not think that any reasonable person should vote for the substitute amendment with this provision in it. It is not sound policy and it is certainly not fair to the people of Nevada. There are lots of ways to ensure that the President acts expeditiously in finding an alternative site and proposing legislation to Congress. The chairman of the Senate Energy Committee has alluded, in previous remarks, to discussions that we have had as to whether a mechanism such as a base closure or realignment commission could develop a set of recommendations that would be forwarded to Congress for action. There are, no doubt, other mechanisms that could work equally well. But I think the principle has to be that any default mechanism we propose has to be workable and has to be fair, if it is actually invoked. I think the scheme in S. 104, the substitute for S. 104, fails on that point. I will conclude these remarks by reiterating the basic principles behind the amendment with respect to how interim storage should relate to the permanent repository. First, siting an interim storage facility next to the Yucca Mountain site is acceptable, but--and this is crucial--only as long as that is where the permanent repository is going to be built. Second, we should not start construction on an interim storage site in Nevada until Yucca Mountain has passed the suitability determination phase of site characterization. That phase ends with the completion of the environmental impact statement for the repository and issuance of the record of decision. Third, if Yucca Mountain is disqualified as a repository site at any point during the process, we should stop any interim storage facility at the site in its tracks. The search for a new interim storage site should then be part of an overall process of looking for a new repository site as well. I do not expect my colleagues from Nevada to agree with all these principles. I realize they are implacable in their opposition to the idea of interim storage in Nevada. I oppose the proposition as set forth in the substitute amendment, unless my amendment being offered today is agreed to. But I urge Senators who, like me, would like to have the chance to vote for a good nuclear waste bill, one that has what I think is the right relationship between the two facilities, to support this amendment. I yield the floor.

Mr. BINGAMAN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. BINGAMAN. Mr. President, I ask unanimous consent that the pending amendment be set aside, and that it be in order to call up amendment No. 31.

Mr. BINGAMAN. Mr. President, what is the pending business?

Mr. BINGAMAN. Mr. President, let me clarify my understanding of the situation. First of all, I agree with much of what was said by the Senator from Alaska. The amendment that I am offering here today does not, in any way, interfere with the end result, as long as the determination is made at every step of the process that the Yucca Mountain site is the appropriate site for a permanent repository of nuclear waste. If that decision is made, then we are in agreement. Then the problem does not exist. It is only if a contrary decision is made that we get into disagreement. Let me clarify here that there is a difference in my understanding between the viability assessment, which is due to be completed on December 1, 1998, and the suitability determination, which is due to be completed on October 31 of the year 2000. I agree that as long as Yucca Mountain is a suitable site and that suitability determination is made in the year 2000, then that is the site we ought to go forward with. So we are in agreement there. I think the question is, if we want to look at a permanent repository, I think we choose Yucca Mountain, if it is suitable. If it is determined not to be suitable, then the question is, what do we do about an interim facility? Now, the only reason for putting an interim facility in Nevada is that that is where the permanent repository is going to be. The Nuclear Waste Technical Review Board said in its report, ``If Yucca Mountain proves suitable for permanent repository development, then the centralized storage facility should be located there as well.'' That makes eminent sense to me. Let's have an interim storage facility there, as long as it is decided that we are going to have a permanent repository there. If we decide not to have a permanent repository there, then, in my view, we ought to have the issue come back to Congress, come back to the President to make a decision on what we are going to do. The reason I think it is so important that we do that is that I think the end result is a different end result than the Senator from Alaska has in mind. The Senator from Alaska is saying the end result is we have to get this waste out of the present locations at these nuclear powerplants and move it to a central site. That is the end result he is looking for. The end result I am looking for is that we need to have geologic storage, permanent storage, of this waste. In my view, my amendment has a much greater chance of getting us to geologic permanent storage of this waste than his solution does. His solution says that, regardless of what we decide about Yucca Mountain as a permanent repository, we are going to put the waste in Nevada in this interim site, and that's going to happen. There is no way to wiggle out of that. Once the suitability of the Yucca Mountain site is determined, we are going to put the waste in Nevada. It is going to be on an interim site there, and there is no way to wiggle out. So we have accomplished our end result. My view is that, fine, we moved the waste to Nevada, but it is on a slab of cement out in the middle of the desert. It is not in geologic storage, not in safe storage, not in permanent storage. Therefore, we have not solved the problem that we set out to solve for all these many decades with regard to nuclear waste. The only way to get us to a geologic repository for that waste, a permanent repository for that waste, if the Yucca Mountain proves unsuitable, is to bring it back to Congress and the President and say, ``Choose another permanent repository for this waste.'' That is what is going to have to happen. That is what ought to have to happen. At that time, we also can decide what to do about an interim site. But it makes no sense to me to be saying, look, if we decide Yucca Mountain is not suitable, we decide we can't put the waste there in a permanent repository, we are still going to put all the waste there; we are going to put it in a central repository, and it is going to be in Nevada because we earlier said it was going to be in Nevada. Granted, the only reason we said that is because we are going to have a permanent repository there. Now we have decided if we can't have a permanent repository there, we can still put the waste there and get it out of these other States. I don't think that is fair to Nevada. I don't think it is good public policy. So I say let's keep the two issues tied together. Let's say, if the permanent repository at Yucca Mountain in Nevada is determined not to be a suitable facility, if we decide that that site, Yucca Mountain, is not a suitable site for a permanent repository, then we need to put the brakes on with regard to using this interim facility in Nevada and say, wait a minute, we have to pick another permanent repository. Let's also make a decision about an appropriate interim storage site. So that's the difference that we have. I think it is a good-faith difference. The great failing that I see with the substitute the way it now stands is that if Yucca Mountain is determined not to be an appropriate permanent repository, then all of the pressures, the course of least resistance will be to move the waste to an interim site in Nevada, put it on a cement slab out in the middle of the desert. That will be the end of it. The pressure will be off. Congress will be under no obligation to do anything else. The President will be under no obligation to do anything else. The only people who will suffer, or potentially suffer, from this are the people of Nevada. I think that is not a responsible public policy position for us to take. We need to find another permanent repository if Yucca Mountain proves not to be the right permanent repository. Mr. President, I yield the floor.

Mr. BINGAMAN. Mr. President, I will need a few more minutes. I ask unanimous consent that I be allowed to speak for up to 6 minutes.

Mr. BINGAMAN. Mr. President, how much time do I have remaining?

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, let me respond. I certainly agree with the Chairman's point that these Senators are greatly concerned about these sites in their States. I compliment them for proposing and being able to get these amendments that they have gotten into this bill into the bill. I think they have done very good work in representing their States' interests. My point is that there are many other sites in this country which have an equal or perhaps an even greater claim to being excluded. We need to either put those sites in or take these sites out. That is the simple thrust of my amendment. Much of the waste that is concerning people at Savannah River, Oak Ridge, and Hanford--some of that waste will wind up in my State and not on an interim basis. Under the proposal for the WIPP site, that is a permanent repository for transuranic defense-related waste. These Senators are providing that they will not have to take any additional interim waste, and the plans are that much of the waste that they are now complaining about having been put in their States will in fact travel to my State of New Mexico in the future once the WIPP site is open. So I have great difficulty agreeing with them that their States should be excluded from possible consideration as a future interim site while my State should be included. As I say, I would feel the same way if I were representing Rocky Flats in Colorado, if I were representing Ohio, the mound site there, or if I were representing the Pinellas shutdown facility in Florida. And, of course, as all of us know, there are a great many Superfund sites around the country which have been determined to be contaminated. I think all of those sites would be at great risk of being chosen by the President and therefore they, their Senators, would want to stand up and get their States or their sites excluded as well. Mr. President, I think this is a very difficult issue, where you put nuclear waste. But the only way I know to get from here to there, to a reasonable result, is to say we are all going to have to share the risk. That is what my amendment would try to do. I yield the floor. I ask, is there additional time on my side?

Mr. BINGAMAN. Mr. President, this amendment is straightforward. The bill, as it now stands before us, says that the Department of Energy will go ahead and try to determine whether it can use the Yucca Mountain site in Nevada for a permanent repository. Mr. President, the Department of Energy will go ahead and try to determine if it can use the Yucca Mountain site. If the President decides, before the deadline in here, in 1999, that Yucca Mountain is not an appropriate site, then they cannot proceed with Yucca Mountain anymore. The President is given 18 months to find another interim site for this nuclear waste, except that the President--and this is in the bill now--it says: The President shall not designate Hanford Nuclear Reservation in the State of Washington and the Savannah River site in Barnwell County in the State of South Carolina or the Oak Ridge Reservation in the State of Tennessee as a site for construction of an interim storage facility. Mr. President, what I am saying is, let us strike those exemptions. All of our States, all of our sites, ought to be at risk if we decide to go this route.

Mr. BINGAMAN. I reserve that time and yield the floor.

Mr. BINGAMAN. I do so.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I rise to recognize the outstanding achievements of the ``Top 25'' women-owned businesses in New Mexico that are being honored by Albuquerque Woman magazine. These businesses--small-, medium-, and large-sized--are all contributing to the economic well-being of our State. It is not easy to start up a new business venture, and it is even more difficult to become a prosperous enterprise. Economic success requires the dedication, hard work and know how that all of the winners of the ``Top 25'' awards have shown. But successful businesses operated by caring individuals generate more than economic growth, they also build our communities. If you look at the list of the businessowners that I will include later in my statement, you will notice many familiar names. These names are familiar because these women are contributing their energy and insight to improving our communities in New Mexico every day. We face many challenges in my home State of New Mexico, not the least of which is to create jobs that pay good wages and provide retirement security. The contributions these women businessowners have made represent real progress in building both the human and capital infrastructure of private enterprise in New Mexico. I congratulate them on their accomplishments and wish them well on the further growth of their businesses. The list of those businessowners being honored by Albuquerque Woman magazine are: Teresa McBride, Jo Summers, Dorothy Queen, Melissa Deaver, Barbara Trythall, Kathleen Olson, Shirley Jones, Judy Roberts, Carole Petranovich, Sandra Bundy, Judi Friday, several doctors from Women's Specialists of New Mexico Ltd., Ching-Ching Ganley, Caroline Roberts, Laurie Steinberg, Elizabeth Pohl, Joan Rosley-Griffin, Ella Leeper, Mary Severns, Sandra Levinson, Annique Torres, Brenda Kilmer, Sally C. Olinger, Jan Pfeiffer, and Renee Budagher.