John Chafee

Mr. CHAFEE

Mr. CHAFEE. I ask unanimous consent that Members have until 10 a.m. to file second-degree amendments to S. 534.

Mr. CHAFEE. I ask unanimous consent that the cloture vote on the committee substitute occur at 10 a.m. on Friday, and that the mandatory quorum under rule XXII be waived.

Mr. CHAFEE

Mr. CHAFEE. Mr. President, I ask that Senators Hutchison and Snowe be added as cosponsors to amendment No. 873, which was previously adopted.

Mr. CHAFEE. Mr. President, let me just say that without the forceful drive of the ranking member, we would not be this far. So on behalf of myself and of the occupant of the chair, the distinguished chairman of the subcommittee, I thank the ranking member for all of his support in making this possible. I, too, hope that tomorrow we can finish what we have here. It may be that we can. Certainly, we are going to try. We are going to come in at 9:30, and there is a vote on cloture at 10. Regardless of the outcome of that vote, I hope we can continue working to see if we cannot finish all of this. If we cannot finish, at least maybe we can get agreements so there will be voting at a set time on whatever date the leader chooses. But it is my goal, and I know it is the goal of the chairman of the subcommittee and the ranking member, to finish this bill quickly. There is always the threat that if we do not get it through, the leader will pull it down, as he has other business we have to attend to. So I thank the ranking member for all of his support.

Mr. CHAFEE

Mr. CHAFEE. If there is no further business to come before the Senate, I ask that the Senate stand in recess under the previous order.

Mr. CHAFEE

Mr. CHAFEE. Mr. President, I ask unanimous consent that the Finance Committee be permitted to meet Thursday, May 11, 1995, beginning at 9:30 a.m. in room SD-215, to conduct a hearing on Medicare solvency.

Mr. CHAFEE. Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet on Thursday, May 11, 1995, at 9:30 a.m. in open session to receive testimony on the national security implications of lowered export controls on dual-use technologies and U.S. defense capabilities.

Mr. CHAFEE. Mr. President, I ask unanimous consent that the Committee on Rules and Administration be authorized to meet during the session of the Senate on Thursday, May 11, 1995, at 9:30 a.m., to hold a hearing to receive testimony on the Smithsonian Institution: Management Guidelines for the Future. ordered. committee on veterans' affairs

Mr. CHAFEE. Mr. President, the Committee on Veterans' Affairs would like to request unanimous consent to hold a hearing on the reorganization of the Veterans Health Administration, and the requirement of 38 U.S.C. 510(b) for the Department of Veterans Affairs to provide 90 days' notice to the Congress before an administrative reorganization may take effect. The hearing will be held on May 11, 1995, at 10 a.m., in room 418 of the Russell Senate Office Building.

Mr. CHAFEE

Mr. CHAFEE. Mr. President, I am pleased today to join Senator Conrad in introducing the Childhood SSI Eligibility Act. This legislation makes important reforms to the children's SSI program without completely dismantling this critical cash assistance program for low- income families with disabled children. It is important to point out from the outset that, contrary to the many sensational stories we have seen in the press, 80 percent of children receiving SSI payments are severely disabled. They suffer from severe physical disabilities such as cystic fibrosis and cerebral palsy, or from significant developmental retardation. The other 20 percent have other mental impairments such as childhood autism or schizophrenia. The families of such children need cash assistance in addition to medical services. In many of these cases, one parent must remain home with the child; in this case, the program serves as income replacement for a parent who must quit working. If these families were to lose their SSI cash benefits, many would not have the resources to care for their children at home resulting in a significant increase in institutionalization. Mr. President, if there is one thing we can all agree on it is that, whenever possible, children should remain at home with their families and in the community instead of in institutions. This legislation continues to make that possible. The cash is also used for other critical supports, such as specially trained child care providers, specially equipped vehicles to transport children who use wheelchairs, home modifications and adaptations, special telecommunication services, and family support services. Having said that, I also recognize that there are some problems with the children's SSI program, and that is why we are introducing legislation today. There has been rapid growth in the SSI program for children over the last 5 years. In 1989 the program was providing cash assistance to 300,000 children; by 1994 it was serving 890,000 children. During this same period the cost of the children's SSI program grew from $1.2 billion to $4.5 billion. The growth in the program has now leveled out, but clearly, we need to ask ourselves why the program suddenly exploded and how we can prevent this from happening in the future. There are a couple of reasons for the sudden growth. First, the recession in the early 1990's resulted in many people falling into poverty, precipitating an increased need for government assistance. Second, in 1989 the Congress directed the Social Security Administration [SSA] to conduct outreach for the first time to potentially eligible families with children who have severe disabilities. Third, there was a change made to the mental impairment listings. And, finally, the 1990 Supreme Court decision, the so-called Zebley decision required SSA to change its childhood disability determination process to evaluate the child's level of functioning in addition to his or her medical condition. It was estimated at that time that 1 million additional children will meet the new criteria under Zebley. We have all heard and read about the stories of parents gaming the system and coaching their children to act disabled in some fashion to qualify for SSI. And I do not question that some of this occurs. But is it rampant? The GAO finds no solid evidence of parents coaching their children, although it aspects of the eligibility determination process. And that is what our legislation does. First, the legislation tightens eligibility to ensure that only children with severe and persistent impairments, which substantially limit their ability to function, receive benefits. Second, it increases and better targets continuing disability reviews to ensure that only those who remain eligible actually continue to receive benefits. Third, it expands penalties for coaching children to act inappropriately in order to receive benefits. Finally, it imposes graduated payments for additional children, like other cash assistance programs such as AFDC. Mr. President, I think this legislation is a fair and balanced approach. It acknowledges and corrects abuses in the system while reinforcing the purpose of the program: to enable children with disabilities to remain at home or in another appropriate and cost-effective setting and to cover the additional costs of caring for and raising such a child. Who is this money serving? Children like Juan, a 9-year-old youngster in my home State of Rhode Island. Juan has been on SSI since birth, confined to a wheelchair and dependent on medical technology to survive. Without the cash assistance he receives under SSI, Juan's mother would be forced to put him into a residential facility at a cost of almost $200,000 per year. Compare this to the maximum SSI benefit of $438 a month. It seems to me that we are getting a pretty good deal, and that families like Juan's deserve every nickel they get. The Finance Committee will be taking up this issue in the coming weeks as part of welfare reform. Many of my colleagues are familiar with the provision in the House-passed welfare reform bill which would eliminate cash assistance for all children unless they would be otherwise institutionalized. In my view, this should be rejected. I sincerely hope that my colleagues on the Finance Committee will consider the legislation we are introducing today as an alternative which provides effective reforms without removing disabled children from the rolls who are truly in need.

Mr. CHAFEE

Mr. CHAFEE. That is fine.

Mr. CHAFEE

Mr. CHAFEE. Mr. President, I call up S. 534.

Mr. CHAFEE. Mr. President, I join with the Senator from New Hampshire, Senator Smith, in presenting S. 534 to the Senate. This is legislation dealing with interstate waste and flow control authority. I want to acknowledge Senator Smith's efforts as chairman of the Environment and Public Works Committee's Subcommittee on Superfund, Waste Control, and Risk Assessment. Senator Smith has taken the lead in drafting this legislation, targeting issues that went unresolved last year. I also want to acknowledge the work of the distinguished ranking member of our committee, Senator Baucus, for his help in the framing of this legislation which we will now be discussing over the next day or so. Mr. President, this legislation is straightforward and attempts to deal with the issues of interstate waste and flow control, balancing the interests of the States that import waste, trash that comes into States for disposal, and the exporters, States that do not have landfills or incinerators and thus ship it out. We try to deal with communities with outstanding revenue bonds as they deal with the issues of construction of waste facilities the local individual who dispose of his or her garbage. This bill includes three titles. Title I deals with interstate waste and is similar to the bill approved by the Senate last year. I would like to stress that. The interstate waste portion is one that was approved unanimously by this Senate last year. Title II focuses on flow control, which we will discuss in a few minutes. And title III reinstates the ground water monitoring exemption for small landfills in the municipal solid waste landfill criteria. Let me turn to title I. This is a very contentious area. Indeed, I guess we have dealt with this, on and off, over the past 5 years. And no one has been more ardent in trying to get this problem solved than the distinguished Senator from Indiana, Senator Coats. Now, on interstate shipments, the bill before us, as I say, is similar to S. 2345, which was approved unanimously last year by the Senate. I want to make it clear that the bill before us deals exclusively with the transport, across State borders, of municipal solid waste. That is what we are talking about. We are not talking about restrictions on hazardous waste or industrial waste or even construction and demolition debris. Those items involve an entirely different set of problems and would require different approaches than we are dealing with here. We are dealing here with municipal solid waste, sometimes referred to as MSW; what the rest of us, in layman's terms, would call garbage or trash. Specifically the bill provides the following. There is an import ban. A Governor may, if requested by the affected local community, as designated by the Governor, ban out-of-State municipal solid waste at landfills or incinerators that did not receive out-of-State waste in 1993. Now, this gets a little bit complicated, but these are provisions that we have worked out with Governors and municipalities, particularly the ones that cross borders. So the first point is there can be an import ban that the Governor can impose, if he is requested by a local community and if that community did not receive out-of-State waste in 1993. Or he can impose this same ban at those facilities that received municipal solid waste in 1993 but are not in compliance with applicable Federal or State standards. So there is a power in the Governor. Now that is an import ban. Further, a Governor may unilaterally freeze out-of-State waste at 1993 levels at landfills and incinerators that received waste during 1993 and are in compliance. In other words, the Governor can put a clamp on limiting it to the amount that came in in 1993, at those levels. Now, there is an export ratchet, likewise. A Governor may unilaterally ban out-of-State waste from any State exporting more than 3.5 million tons in 1996. This declines to 3 million tons in 1997 and 1998, drops to 2.5 million tons in 1999 and the year 2000, 1.5 million tons in the year 2001 and 2002, and 1 million tons in 2003 and every year thereafter. So the Governor has this power to ban out-of-State waste coming from a State that is exporting very substantial amounts. That is the power in the importing State Governor. There is also another ratchet. A Governor may unilaterally restrict out-of-State waste imported from any one State in excess of certain levels. There is a cost recovery surcharge provision. States that imposed a differential fee on the disposal of out-of-State waste on or before April 3, 1994, are allowed to impose a fee of no more than $1 per ton. So there is that $1-per-ton limitation, a differential that a State can impose, as long as the differential fee is used to fund solid waste management programs. What we are dealing with all through here are the limitations that are imposed by the commerce clause of our Constitution. The bill we are dealing limiting or prohibiting solid waste imports to landfills or incinerators that have a host community agreement to receive out-of- State waste. In addressing the problem of interstate waste, I, as chairman, and Senator Smith, likewise as chairman of the subcommittee, have tried to find a solution that will reduce unwanted imports yet give exporting States some time to reduce the amount of waste generated, to increase recycling, and to site new in-State capacity. What we are trying to do is to take into account the large exporting States' problems, but we are not going to let them export forever. What can they do? As I say, they can reduce the amount of waste generated, they can increase recycling, and they can set up their own sites in their States to deal with the problem--incinerators, landfills, or whatever they might be. Title II deals with what is known as flow control. Flow control refers to the legal authority of States or local governments to designate where waste must be taken for processing or treatment or disposal. Over the past 20 years, State and local governments have used flow control as a financing mechanism for the development of municipal solid waste disposal facilities. What am I talking about? I am talking about incinerators and landfills, for example. A municipality says, ``We have to have an incinerator to take care of the waste within our municipality.'' So they say, ``Well, we'll build one. And where do we get the money? We issue bonds. All right, but how are we going to make certain that we are going to have the waste flowing in and the so-called tipping fees?'' So the municipality passes an ordinance which says: Everybody in this municipality must take trash to this central facility, and there they pay a tipping fee and you are not allowed to ship it elsewhere. BFI or other commercial firms cannot come in and say, ``I'll take your waste for a lower price.'' No. The way it works is the locals say you can only take it here, because that is the way we can pay off our bonds. Flow control guarantees that a projected amount of waste will be received at a designated waste facility. Thus, a predictable revenue stream is generated for the retirement of the cost of the facility, the capital cost, and the operating expenses. Flow control, as you can see, distorts the waste market by creating State or municipally controlled waste monopolies. Obviously, it becomes a monopoly. If the city of St. Louis says that no trash can be taken elsewhere but to the city incinerator, that is a monopoly. But the city of St. Louis might say, well, we spent a lot of money to build this incinerator and the only way we can pay off our bonds is with a guarantee flow from our municipality so when the big trucks, private trucks pick up, they can only take it to the city of St. Louis incinerator. Communities across the country have made investments predicated on flow control, but I, and likewise Senator Smith and Senator Baucus, do not believe in perpetuating that kind of system into the future. Designating where waste must go will only drive up the cost of waste disposal for our citizens. Not unlike the interstate transport of municipal solid waste and its implications on interstate commerce, flow control has emerged as a controversial legislative issue because of several recent Federal court decisions. Over the past 5 years, Federal courts have ruled that flow control laws in no fewer than four States violate the commerce clause of the U.S. Constitution. Similar to restrictions on interstate waste, flow control undermines the commerce clause by barring States and political subdivisions by placing undue burdens on interstate commerce. This case all came up May 16, 1994, just a year ago. It was called the Carbone case, Carbone versus Town of Clarkstown, NY, which the Supreme Court decided just a year ago. The Supreme Court's ruling in the Carbone case has made it clear that absent congressional action, the exercise of flow control by States and political subdivisions is unconstitutional; it interferes with interstate commerce. The city of St. Louis no longer can say to all its citizens, ``You must bring your trash to this central facility.'' That is interfering with interstate commerce and is unconstitutional, unless Congress decides otherwise. So we are here today to override the constitutional provisions on State laws that interfere with interstate commerce and so as to provide new authority to the States. We are beset with communities, such as the illustrative one I gave of St. Louis, that has invested substantial sums of money in their incinerators and are counting on paying off those bonds through the fees that come in and suddenly the whole ground rules are changed by the Supreme Court decision. So they come to us and say, ``Grandfather us. We issued those bonds dependent upon this flow of trash.'' The Supreme Court has said Congress can do this. We can provide new authority to the States by declaring that the impact of such laws on interstate commerce is reasonable. Should we move in this direction? I say yes, but a qualified yes. We should tread carefully, and this bill does that. This Senator believes that Congress was granted the power to regulate commerce in order to ensure the free flow of goods and to protect against economic warfare among the States. We must not create a system that builds walls around our States and our communities. The economy of our country has been successful over the past 200 years because of the free flow of goods and services among our States. Let us not go overboard today loading up this bill with discriminatory amendments. Unnecessarily restricting the interstate transport of waste and providing unlimited flow control will limit competition in the waste market. It will discourage the selection of less costly waste disposal options, and it will force duplicative infrastructure investments in our communities. The intention of the bill before us today is to provide States and political subdivisions with flow control authority in order to meet financial obligations with respect to solid waste management facilities and to maintain their creditworthiness. Title II provides limited flow control authority under certain conditions to States and subdivisions that have embarked on these commitments, these financial investments that, rightly or wrongly, were predicated on the expectation or implementation of flow control. They built these facilities and issued the bonds believing that what they were doing was right, was legal and was dependent upon restricting where the trash within their communities could go. It could only come to the municipal landfill or incinerator. We are not, in grandfathering these provisions, reflecting any position on the appropriateness of flow control as a policy option. In each instance in which flow control authority is granted under this legislation, that grant is predicated on meeting debt obligations. The final part is title III, which is called groundwater monitoring. In it, we reinstate a groundwater monitoring exemption for small landfills in the municipal solid waste landfill criteria. All of this reflects back on the Resource Conservation Recovery Act, section 4010(c). One of the most significant issues raised during the revision of the criteria was the impact on small community landfills. As a result, the October 9, 1991, final rule for the criteria included a groundwater exemption of owners and operators of certain small landfills. In January 1992, petitions were filed with the U.S. Court of Appeals for review of the new landfill criteria. The court, in its review, vacated the small landfill exemption as it pertained to groundwater monitoring. The purpose of title III of the reported bill is to reinstate the exemption. As many of us remember from the debate on interstate waste in 1992, the flow of garbage raises intense local and regional concerns. In some areas of the country, this seemingly mundane issue is politically potent. Who would have thought that so much heat could be generated by garbage disposal? Mr. President, I believe this legislation represents a good-faith effort to bring the various parties together on the issues of interstate waste and flow importers without overriding the needs of waste-exporting States. It protects past community financial investments with respect to flow control; yet, it provides opportunities for the private sector. I commend the Senator from New Hampshire and look forward to working with him and other Members of the Senate to approve this legislation in an expeditious fashion. Now, Mr. President, I would like to yield the floor, without losing the same, to Senator Baucus for his opening statement.

Mr. CHAFEE. Mr. President, I yield to the distinguished Senator from New Hampshire.

Mr. CHAFEE. Mr. President, could I ask a question to make a point? When it passed unanimously last year, that was when the other party was in charge, had the majority. So not only did all of the Democrats vote for it in a bill that was drafted by a majority of the Democrats in the committee and approved on the floor, but every Republican likewise voted for it. So two different parties have worked on this legislation over 2 separate years and come to exactly the same result. Having passed unanimously last year, I certainly hope we can get on with the same language, get the same

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

Mr. CHAFEE

Mr. CHAFEE. Well, the Senator has a good point. The other side of the coin is that once you permit this, you are permitting communities to set up and operate. That may be all well and good. But BFI, or Waste Haulers, or whoever it is, cannot come in there and offer better, cheaper service, and some citizen in that community is being deprived of choice.

Mr. CHAFEE. I think this. First, I am not willing to concede that in Broward or Dade County, or wherever it might be, inevitably, if do you not have flow control, your waste is going to end up in an environmentally damaging situation. That does not necessarily follow. We have all kinds of laws on the books dealing with the handling of waste in this country. And if some other outfit comes in--Waste Management, or whoever it is--and hauls it, they cannot just take it and dump it in some lovely field above a ground water area. They have to dispose of it in a proper way. But the whole root of what we are dealing with is the commerce clause of the Constitution of the United States, which says that there should be free interstate transportation and movement in our Nation. That has served us pretty well. You might say, ``How petty can you get? Why should Miami, or wherever, not be permitted to handle their waste, and if everybody has to take it to one place, and that is the only place, that is the way we want to run our business?'' But the Supreme Court has said that is against the Constitution. I know we can fix it up, and the Supreme Court, as you pointed out, has also said we can straighten it out. So far, we have chosen not to take that extra step.

Mr. CHAFEE

Mr. CHAFEE. I thank the Chair. (The remarks of Mr. Chafee pertaining to the introduction of S. 789 are located in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'')

Mr. CHAFEE

Mr. CHAFEE. Mr. President, I would also say to the distinguished Democratic leader, it appears around here if there is anything controversial now, you need 60 votes to get it passed. Not a 51 vote margin, 51 to 49, it has to be 60 votes if the legislation is controversial; something new in the life of the Senate, but not entirely new, I will say that.

Mr. CHAFEE

Mr. CHAFEE. Mr. President, I ask unanimous consent James McCarthy, of the Congressional Research Service, be granted the privilege of the floor for the pendency of S. 534.

Mr. CHAFEE

Mr. CHAFEE. I wonder if I can ask a question.

Mr. CHAFEE. First, I want to confirm that indeed the Senator has sunk his teeth and jaws deep into this issue. I will second everything he said about his determination on this whole project. He has been at it for, I guess, 5, 6 years, whatever.

Mr. CHAFEE. The Senator mentioned he had some amendments which I guess he is going to discuss now.

Mr. CHAFEE. I am caught in kind of a bind in that I want to be here when the Senator makes his remarks and offers his amendment. But I may have to step out for a minute or two. Who is working with the Senator in connection with his amendments? You mentioned ``we.'' Is it several of you?