John Glenn

Mr. GLENN

Mr. GLENN. Arbitrary and capricious.

Mr. GLENN. Then we disagree on the meaning of----

Mr. GLENN. Section 706. It is my understanding, under Dole-Johnston, it expands 706 for scope of review. It allows a court to set aside an agency action if findings are ``without substantial support.'' That is a new and higher standard of review than APA has acknowledged in the past.

Mr. GLENN. I reply to my colleague from Louisiana, we maintain the current status under the APA, the standard being arbitrary and capricious, which has been the case for a long time.

Mr. GLENN. I think we are referring to--you are talking about section 706?

Mr. GLENN

Mr. GLENN. Will the Senator yield?

Mr. GLENN. They are required by law.

Mr. GLENN. Mr. President, I thank the Chair. Mr. President, we have heard a lot the last few days about horror stories of regulations, horror stories about Government's heavy hand and how civil servants that serve this country well most of the time sometimes get carried away with the program and throw their Federal regulatory weight around to the point where it really is intrusive in the lives of our citizens and do some things that just defy common sense. I am not going to be the last one to stand here today and say that never happens. I think when we rise on the floor here and make repeated remarks and make repeated examples of things that are not of obvious truthfulness, that we do a disservice. So some of the things that have been said here on the floor in the last few days I want to spend some time this morning correcting. Let me say I feel strongly about this for our people that work in civil service for this Nation. For the last 8 years until last fall I was chairman of the Governmental Affairs Committee. One of our areas of oversight, our areas of jurisdiction, is the civil service of this country. We work very closely with them. We have representatives of civil service groups that come in and talk to us on a regular basis. We keep in touch with them on almost a daily basis with staff. We work to get them better pay and working conditions and so on. So, we work with the people of OPM, the Office of Personnel Management, to make sure that the people in civil service are treated fairly. Many of them are very talented people who serve the Government and who could be doing better outside. They have every bit of the same dedication for their country as we have right here, and they feel strongly. It hurts them when they are unfairly castigated, unfairly pointed out as doing things that are wrong in administering the laws of this land. So I wanted to correct some of the things that have been said. I know my distinguished colleague from Utah pointed out that he has his daily 10 transgressions in the area of misuse of rules and regulations. I sort of overlooked these things until they started being picked up and published in some of our papers in Ohio. So I think I have it as a duty to correct some of these things. We have asked the administration downtown to look into some of these things. Some of the information I have puts a little different slant on some of these things. I want to run through a few of these this morning because I think it is important to protect the reputation, protect the feelings--if you want to put it on that basis also--of people who work very hard in the civil service. I want to correct some of these things. It was said the other day on the floor--I believe it was No. 10 on the list for that particular day--that the Federal Government was ``delaying a Head Start facility for years because of the dimensions of the rooms.'' The reality of the situation was that this is misleading because it was not due to Federal regulations at all. And I would add that S. 343, the Dole-Johnston bill, would do nothing in any way to solve this problem. The fact is that Head Start regulations do not address room dimensions. Head Start applies reasonable and flexible standards to its facilities, and over the past 6 years these flexible standards have allowed Head Start to develop thousands of new facilities. The example that was given by my distinguished colleague was due to a legal dispute between a subcontractor and the city of New York. It had nothing to do with Federal regulations. If such legal disputes are the problem, then I think we should question support of what some describe S. 343 as--a lawyers' full employment act of 1995. Now, another one was put out which turns out to be a myth also. The claim was that the Federal Government was: Forcing a man to choose between his religion and his job because rules do not allow workers to wear a mask over a beard. The reality. This is flat wrong. OSHA knows of no cases in which a employer received a citation because their employees were not wearing properly fitting respirators because their workers wore beards for religious reasons. In fact, OSHA regularly grants exemptions for protective gear requirements for employees who object due to ``personal religious convictions.'' Now, the general rule of respiratory protection is for the protection of the people involved, but obviously if a person has a beard for a religious purpose or whatever, they try to take care of that. They do not insist that a person be cited in a situation like that. They give an exemption for that. And that is their policy. Another one was cited that morning. It was No. 7 that particular morning on the list of items of ridiculous regulations. I quote: Fining a gas station owner $10,000 for not displaying a sign stating that he accepts motor oil for recycling. The reality. There is no such Federal regulation. EPA does not require gas stations to post signs stating that they accept used motor oil. There is no Federal RCRA regulation requiring the posting of such a sign. RCRA does require gas station owners just to label tanks used to store recycled oil, but that is to prevent contamination of stored, used motor oil with other solvents or other contaminants. So there was no regulation on a sign that would accept motor oil for recycling. Another one stated that same morning. This was No. 3, I believe, on the list: Prohibiting an elderly woman from planting a bed of roses on her land. The reality. There is no current regulation which could prohibit planting a rose bed. This allegation is one that keeps cropping up all the time, it turns out. I was not aware of this, but they say this is one that comes around from time to time--it has been around for years-- in Republican administrations and Democratic administrations. It has been recycled for years, and the State in which this is alleged to have occurred has varied with the telling of the story. In some cases it has been Wyoming, in others it has been Texas or Louisiana. So they have heard this over at the agency for a long time. Whenever it surfaces, EPA or the Army Corps of Engineers attempts to track down the specific situation, so every time this rumor comes up they go at it again to make sure they have not missed something. And since the name of this supposed elderly woman has never surfaced, it has been very difficult to verify it. It involves checking with multiple field offices of various Federal agencies. Despite these numerous checks, there never has been any wetlands case identified that involved anyone planting a rose bush. So that one has been around for years. Another one. This was cited as No. 2 the morning this particular one was given. It said, and I quote: Fining a man $4,000 for not letting a grizzly bear kill him. Well, the reality is it simply is not true. This story was circulated in a Wall Street Journal editorial on June 23, 1993. The story painted a portrait that would have flattered a Hollywood screen writer and mischaracterized the real facts as much as they were misrepresented on the floor. A rancher was fined $4,000 for shooting a grizzly bear which is listed as an endangered species, but he shot him because it had killed and eaten some of the rancher's sheep. Now, the fact is the bear did not attack or threaten the rancher or anyone in his family. Indeed, it is certainly not illegal to kill an endangered species when a human life is threatened. The rancher in this case was fined because he killed an endangered species for killing the sheep--listen to this--after he was financially compensated for the loss of his sheep, after he was assured that he would be compensated for any further losses, and after he declined the State of Montana's offer to build an electric fence to protect the sheep and after he was informed that if he killed the bear anyway he would be prosecuted. We do not have too many bears in my home State of Ohio, so I guess we are not going to be coming under some of these same problems, but to the western States that is an important one. Another one. And this was No. 1 on the hit list the other day on the floor. It says: Requiring braille instructions on drive-through ATM machines. Well, according to the American Bankers Association, It is entirely conceivable and not unexpected that a passenger may exit the automobile to use the drive-up ATM and this passenger may be an individual who is visually impaired. So when no other machines on the premises are available, this is an entirely rational regulation. It recognizes the need for these machines for passengers and walkup users both. Now, there was another one on one of the other days here. These lists that my colleague from Utah has put out have been I think two mornings I know of, maybe three mornings but two mornings for sure. So this was No. 10 on the list as we counted David Letterman style on the floor on another morning. It was said that we stopped an owner from building on a wetland of 0.006 acres, about the size of a Ping-Pong table. Well, the reality of the situation when it was checked is this. The applicant proposed to place 30 cubic yards of fill material in a creek and EPA received objections to the proposed project from local property owners. The local property owners themselves complained about this. And the applicant was unwilling to reduce the size of the fill, was unwilling to move the proposed building 25 feet to avoid dumping fill material in the creek. The applicant then attempted to obtain a waiver from the local city to its requirements, not Federal but to its requirement of a 25-foot buffer zone. The applicant evidently obtained a waiver of some sort from the city and did not need to dump fill material in the creek. Those are the facts of the situation. Another one that day. I think this was No. 7 on the list. I quote: Fined a company for not having a comprehensive hazardous materials communication plan for its employees even though the company only has two part-time employees. Well, the reality of the situation is that OSHA does not require a ``comprehensive hazardous materials communication plan.'' It does have a right to know standard or a hazardous communications standard that protects employees when they are working with potentially toxic substances. And that is common sense. The simple right to know principle would have made a difference, for instance, for a nursing home maintenance worker who unknowingly--he had not been told about this so he did not know what the hazardous materials were--unknowingly mixed bleach and common lime remover in a bucket and was killed by the resulting toxic gas. Another one was pointed out as a Federal transgression on administration of regulations. This was another one on the list that same day, No. 6. Required a $6 hospital mask instead of a $1.25 mask with no analysis of the benefits and costs. Well, what is the reality of this one? This one is slightly more complicated. In the last 10 years, the rate of new cases of tuberculosis has increased by 23 percent, reversing a 30-year downward trend. Outbreaks have occurred in hospitals in Atlanta, Miami, and New York City. In 1993, OSHA released its guidelines for protecting workers from exposure to TB. That means they are going to be in where the TB patients are. The OSHA guidelines are based on a document issued by the Centers for Disease Control and Prevention in 1990. The CDC guidelines recommend employees wear NIOSH-approved high- efficiency particulate air respirators as a minimum level of protection. In 1993, OSHA was petitioned to protect workers against contracting TB in certain workplaces. When the proposed rule is published-- It is not finalized. when the proposed rule is published, it will include a preliminary risk assessment, a cost of compliance analysis, an analysis of effective indices, and the evaluation of the rule's benefits. Through these analyses, OSHA will then determine which type of mask would adequately protect workers from TB. Another one pointed out as the heavy hand of Federal regulation that day: Required such stringent water testing that local government considered handing out bottled water to save money. The reality is this. EPA has recognized the high cost of water testing for some small communities can be a serious problem, particularly if water supplies are contaminated and need treatment. EPA has been working for several years to assist States in implementing science-based programs of waivers from monitoring requirements while still assuring the safety of water supplies. Most States now have waiver programs, but they are not always actively used. But for the vast majority of Americans, drinking water safety monitoring inspection is inexpensive and effective. Costs range from 1 cent to 9 cents a month for 90 percent of U.S. households, far less than the cost of bottled water, as was pointed out. I will also point out that President Clinton specifically asked EPA on March 16 of this year to undertake revision of water testing to ensure water safety at a reasonable cost. EPA has subsequently met with officials from 19 States that are developing a new approach to streamline the drinking water monitoring. Ironically, I will point out, the Dole bill, S. 343, might delay implementation of many of these streamlining rules. It could delay solving the problem rather than help out. Another one pointed out that day as a regulatory misfire, No. 1-- counting down 10 to 1 like David Letterman does: A company was fined $34,000 by the EPA for failing to fill out form R, even though they did not release any toxic material. EPA could find no record of any case exactly like this. We think there may be some because the dollar figure is similar, but there is no record of a case like that. EPA is seeking penalties of $34,000 against two companies that did release potentially harmful chemicals. Two companies, Washington Ornamental Iron Works and Thatcher Tubes, were fined for failure to report air emissions to EPA's toxics release inventory, as required by section 313 of the Emergency Planning and Community Right To Know Act. The principle behind this statute is that citizens in a community have a right to know what chemicals are being released into their communities, what chemicals their children are breathing, what chemicals they themselves are breathing, when these releases take place and in what quantity. Washington Ornamental Iron Works of Gardenia, CA, was fined $34,000 for failure to report for the years 1990 and 1991. In 1990, the iron works released 14,000 pounds of trichloroethylene. In 1991, the iron works released 12,000 pounds of the same material. They finally came into compliance in June 1995 after receiving a civil administrative complaint from EPA. Why is this important? At high levels of exposure, this kind of trichloroethylene causes central nervous system disorders, irregular heart rate, and pulmonary edema. Production of this solvent is scheduled to be phased out by the year 2002 because of its ozone- depleting characteristics also. I think in a case like that, the fine was well justified. I do not know about form R--nobody knows what happened on form R. That is one case where the $34,000 fits, and I think justly. Another one happened to also involve a $34,000 fine. Thatcher Tubes of Muscatine, IA, was fined $34,000 for failure to report the company emitted 7,300 pounds of methylethylketone in 1991 and 8,783 pounds of the same chemical in 1992. Methylethylketone is irritating to the eyes, mucous membranes, and the skin. Headache and throat irritations are reported among people exposed to the concentration near the maximum level allowed in the workplace. At higher levels, workers complained of numbness in the fingers and arms, sometimes a leg. Dermatitis was sometimes reported following prolonged exposure to vapors. Those are two EPA could find where the $34,000 figure fit. I think anybody could look at these things and say, ``Good, let us applaud the EPA for what they did for protecting all of us and for the people in those particular communities in those cases.'' Here is another one. No. 7 on the list the particular day it was given on the floor. Nevada rancher, Wayne Hague, faces a potential 5-year prison sentence under the Clean Water Act by hiring someone to clear scrub brush from irrigation ditches on his property. The ditches have been used since the turn of the century. Facts of the case, back to reality again: Virtually every part of this statement is false. The case did not even involve violations of the Clean Water Act. The scrub brush, as it is called, consisted of over 100 pinion pines and juniper trees in the Toiyabe National Forest in Nevada. He claimed his property was actually on Federal property. Mr. Hague's actions constituted an unauthorized destruction of Federal property in violation of Federal criminal law. Another one: Fish and Wildlife Service required a farmer to stop economic activities on his 1,000 acres because of the presence of the red-cockaded woodpecker. The reality is this is just factually incorrect. This example refers, we believe, to Mr. Cohen, a timberland owner of North Carolina who owns far more than 1,000 acres of land, but private property owners, like Mr. Cohen have the opportunity to develop a habitat conservation plan that allows them to both protect the endangered species and to use their land productively. Many organizations and developers are participating in such plans to protect the woodpecker. Mr. Cohen has submitted a management plan to the U.S. Fish and Wildlife Service, and it has been approved and he is logging his land in a productive way that does not destroy the endangered species. Another one which was myth No. 3 on the day that it was stated: OSHA fined a company $500 for failure to submit a report that no employee was hurt last year. This is something that was a problem, but the problem has already been fixed. This is no longer a problem. OSHA is committed to injecting common sense into the enforcement process when an employer has an effective health and safety program but fails to meet the exact letter of the law, such as failure to fully complete or sign the annual form. That well-meaning employer is treated differently. Over the last year, OSHA citations for these recordkeeping requirements have declined by between 60 and 70 percent. It reflects OSHA's new emphasis in this administration on compliance with the spirit rather than simply the letter of the law. OSHA will continue to issue citations when employers clearly disregard their obligation to maintain records of work-related injuries and illnesses. It is important that OSHA continue to provide employees with the message that complete and accurate occupational injury records are of paramount importance. Records of workplace illnesses provide employers and workers information that can help them identify hazards and prevent injuries and illnesses in the future. Mr. President, those are just a few of the responses. We could not get the complete answers to all of the things that were charged on the floor. I think we see there is a lot of myths going around here. I wanted to make sure the reality of these situations was also brought to light today. I hope that we will have better substantiation of any charges in the future because it reflects poorly on the Federal employees, those in civil service who are trying to administer the law and do it fairly and correctly, not only adhering to the letter of the law but also doing it in a fair manner so that people do not have undue problems with the Federal Government. I am the last one to say there are not a lot of problems. I have been advocating regulatory reform for years in the Governmental Affairs Committee. We have a bill, S. 1001, which we think does a better job of balancing the requirements for protecting the public while not overburdening people with rules and regulations. Let me go on to another one stated on the floor also. The distinguished Senator from Iowa has been on the floor for 2 days when I was on the floor, at least, and has repeated this one story in particular that I wanted to address today, because it disturbed me enough the first day that, if it were true, I really wanted to look into it. His description of it was very, very graphic. He talked about Mr. Higman in Akron, IA, and how some 40 agents of the Federal Government--EPA I believe it was stated--came rushing into this establishment with their guns cocked, pointing at everybody, particularly the accountant, as I recall, and that this whole thing cost Mr. Higman about $200,000 in court costs, all because a disgruntled employee gave false information about pollutants, toxic materials at this business site. Well, I was very curious about this because I thought if there was that kind of egregious behavior going on around the country without due cause, we should be looking into it and maybe we should have a hearing on this. I did not know. So we looked into it. It turns out that a letter was sent to Senator Grassley on August 18, 1993. I would like to read you selected parts of this because it puts a little different light on this incident about these people rushing in with guns cocked, pointing at people in Mr. Higman's establishment in Akron, IA. The special agents that I am quoting comes in part from the letter from EPA to Senator Grassley. This person was asked by Administrator Browner to respond to Senator Grassley's letter, I gather, of July 1, 1993, concerning a criminal enforcement action taken in 1991 against the Higman Sand & Gravel Co. in Akron, IA. I am pleased to be able to respond. Special agents of EPA's criminal investigation division conducted a search at the Higman site pursuant to a Federal search warrant authorized by a Federal magistrate and approved by a U.S. attorney. This was not something where people decided willy-nilly to come rushing in. The search warrant was authorized by a Federal magistrate, approved by a U.S. attorney. The affidavit for the search warrant was based on information from, they thought, a confidential, reliable informant that hazardous waste was being stored at the site. The Higman Co. is not a permitted facility to store hazardous waste. It does not have the proper facilities. Information was also received from another Federal law enforcement agency that searches of the homes of some of the Higman employees had recovered machine guns and explosives and that the agents conducting the search at the Higman Co. site might encounter armed individuals and explosives. An informant advised the agents that a loaded rifle was always kept in the office at the Higman Co. Based on this information, 17 law enforcement officials from the EPA, ATF, and the Iowa Department of Criminal Investigations participated in the execution of the search warrant at the Higman Co. There were not 40. This says 17, which is certainly enough; there were 10 employees at the company when the search was conducted. The agents recovered loaded weapons from the site, and the hazardous waste specified in the search warrant was found on the grounds of the company. So the material was there. They were not authorized to have it there. The reason they were not permitted to have it there was because it might be a danger. What was it, cyanide? I do not know. What can you store that is a danger to other people around the community? These things have to have special storage, and this was not a site that was permitted to have this toxic material. Now, this went to trial. I believe the Senator stated on the floor that Mr. Higman's court costs were somewhere around $200,000. Now, a jury acquitted defendants Harold Higman, Jr., and Harold Higman, Sr., and Higman Sand & Gravel Co. in this case. The jurors were polled after the trial and stated they knew the Higman Co. was not a permitted facility and that the material recovered was in fact hazardous waste. However, they did not believe the Government proved that the hazardous waste was stored at the site knowingly. So the difference here is that everything that led the agents to come in there in the first place was true. There were loaded weapons. They found those on the site. The toxic material was there on the site. So all the reasons why they took the precautions and acted as they did and got approval from a Federal magistrate and a U.S. attorney, were verified with exactly what happened once they got into that community. EPA special agents are thoroughly trained in the use of force, and they exercise the use of force with great discretion, with the constitutional rights of affected citizens in mind. They take precautions in this area. I ask unanimous consent that this letter be printed in its entirety in the Record so people can make their own judgments on that.

Mr. GLENN. Another one brought up on the floor also was that in the July 11 Congressional Record, there was an extended statement about how EPA's air permitting program is causing a lot of redtape for the grain elevators in the State of Iowa. This has been a problem, I know that. But I think the statement is misleading in that EPA is aware that small grain elevators operate only on a seasonal basis. They have been working with the Feed and Grain Association to get the facts about the amounts of small particle pollutant emissions that might be expected from these sources. They responded to Senator Grassley's concerns in this regard. I am glad they have done so. The main points I summarize as follows. EPA's air permitting program provides for a 2-year transition period during which small sources such as some grain elevators can avoid the need to get a Clean Air Act permit and maintaining records sufficient to document their low-level emissions. EPA is working with the Feed and Grain Association to identify more realistic assumptions on the amount of time an elevator can operate. They recognize that small grain elevators only operate on a seasonal basis, not year around. They are participating in an industry-sponsored source-testing effort aimed at the emissions factor, which is the estimate of how much small particle pollution is emitted per unit of grain processes. It is industry sponsored, and EPA is working right along with them on this. So those efforts, while not completed yet--I grant that--should help clarify which, if any, grain elevators should be considered a major source of emission and subject to air permitting requirements. Mr. President, these are just a few of the things that have come up here on the floor. I did not try to make the complete 100-percent rebuttal to all of the things said here on the floor because some of these may very well be cases where there were onerous oversteps made by Federal agents in the enforcement of laws. But I also state again what I have stated before. If we want to see the difficulty with regulation, I think most of us in the Senate need only look in the mirror when we get up in the morning. Eighty percent of the regulations are required by law and passed in the Congress. We pass laws here with the House, back and forth, it goes to the President and is signed, and they implement the laws and regulations. Eighty percent of what they write there are regulations written pursuant to what we require right here. So if we want to see one of the biggest problems with regulators, we better just look in the mirror in the morning. We have another problem here. What we are requiring with the proposed legislation, S. 343, there are going to be an awful lot of checks, an awful lot of requirements for regulations. I had an example here of just one under the Clean Water Act. I will not go through all the details, as I have done the last couple days on the floor here. This one regulation passed, implemented, just one out of several hundred under the Clean Water Act, just one requires 126 feet of shelf space. We checked with the Capitol Architect. I can tell Members what that is--three piles of documents from this well to the ceiling up there. That is 42\1/2\ feet, the Architect says. Mr. President, three piles of documents. The average cost, we are told by testimony in the Governmental Affairs Committee, was about $700,000 per regulation, that is necessary. I am not one that says we cut back on that. If we are going to have a regulation, we should do it right and make sure the application is absolutely correct. In the time I have remaining, I would like to point out, also, that these regulations are not all just dreamed up by some Government bureaucrat. Mr. President, 80 percent of them are required by what we require here on the floor, in the laws that we pass. We are the ones requiring them. I think all the cost analysis that we are now putting over there and requiring on the agencies by this legislation, we should apply to ourselves, right here, when we are considering passing a law. Why do we not do the cost studies, not pass something unless we do the cost studies, not put it over there, require all sorts of studies, and say it is too expensive? Now we provide a capability for legislative review. We call it so we can bring a rule back, redo it here, after they have done it over there. We should be correcting that in the first instance, right here. Let me run through just a few of the things, regulations that have saved lives. Toy safety. Small parts on children's toys. We estimate 12 choking deaths are related to such small parts annually. Should we not protect our children against that, if we can? If we can just have some regulations that help establish the right procedures on that? Of course. Child resistant cigarette lighters. The Consumer Safety Commission issued a safety standard in 1993 that established a requirement to make disposable cigarette lighters child resistant. Fires started by children under age 5 cause an estimated average of 150 deaths, approximately 1,100 injuries, nearly $70 million in property damage. Can we not do better than that? I think we can. That is what they have done. These are regulations that save lives every year. All regulations are not goofy. All regulations are not something just dreamed up by some bureaucrat and misadministered or maladministered. Poison prevention safety closures. They estimate that packaging for products like aspirin or turpentine making them child resistant saved over 700 lives per year. Ban on bean bag cushions. Where they had problems with these things, deaths occurred when a pocket was created in a cushion that could trap an infant's exhaled carbon dioxide and the infant could not breathe properly. Had regulations on that that saved lives. Child-resistant packaging for mouthwash. Very simple things like that, but they save lives. Fireworks requirements. Safe cribs. Flammable children's sleepwear. Power mowers. Are these things that are just dreamed up? No, most of these things, I would say, are required by legislation we passed here. Most of these things are implemented over in the agencies because we required them to be implemented with the legislation that we passed here. Automatic residential garage door openers. Hit that thing and it comes down. Well, if a child happens to get under it, and the report indicates that some 54 children between the ages of 2 and 14 had died after being trapped under such garage doors. Died. Is it wrong to say that it has to have a safety device on it? Equipment manufacturers, after January 1, 1993, provide features to minimize the likelihood that a child would be trapped and killed by a garage door. We have more regulations on lead poisoning, and brown lung disease regarding the textile workers. In 1978 there were an estimated 40,000 cases of brown lung--also byssinosis--but in 1985 the prevalence of the disease declined to about 900 cases, or less than 1 percent of cotton textile workers. There is evidence that complying with OSHA's cost dust standard increased productivity in the textile industry. A 1980 article in the Economist reported that a tighter dust control measure required by OSHA's rule prompted firms to replace outdated machinery with newer, more efficient systems, and they were more productive after they did that. Exposure to HIV and hepatitis B.--rules were put out to protect workers who routinely were exposed to blood or other infectious material. Saved lives. Mine explosions and fires. Safety requirements there have been very effective. In my home State of Ohio, which is affected by that because we have a lot of mines in southeast Ohio, near the area I grew up. The ventilation standards for underground coal mines prevent the accumulation of methane and cold dust fuel for explosions and fires. In the 25 years before passage of the Coal Mine Health and Safety Act of 1969, 901 miners were killed in explosions. I can remember explosions happening when I was a kid back there. There would be a mine explosion and several people would be killed. It would be a terrible thing. In the 25 years after that act was passed, the explosions claimed 133 miners, instead of the 901. Mine falls are also covered by safety rules, black lung disease, mine cave-ins, all with improved, decreased mortality rates. Mr. President, I say that I did not really plan to get into all of these things originally when these things were brought up on the floor, but I found that some of our papers back home in Ohio were picking up on these examples and using them in editorials, and I thought I better correct some of these things to make sure we understand that all of these rules and regulations that were cited here on the floor are not bad. Some of them are misunderstandings and some of them are good regulations, even though they are pointed out in a different light. I do not have much time remaining, but let me say one other thing. We had E. coli debates here on the floor the last couple of days, and votes here on the floor the last couple of days. I heard on the radio when I was driving in this morning, an outbreak, I believe in Atlanta, where there were 18 cases of E. coli reported yesterday. I already knew about 16 cases. I believe most of that was in Wisconsin. We have an outbreak now in Wisconsin, Tennessee, Illinois, and Georgia, of E. coli. This is not something that is just a fictitious product of our imagination here when we express concern about E. coli, and we were told we were nit-picking, we were just trying to delay things, because we are concerned about the safety and health of people out there. We know what E. coli does. We lose an average in this country of 500 lives a year to E. coli. This bill would delay implementation of regulations that would help curtail that. Mr. President, 3,000 to 7,000 total lives lost each year to foodborne illnesses. Cryptosporidium in the water supply, and so on. Up in Milwaukee, it killed 100 people, made 400,000 people deathly ill. Mr. President, 100 died. That is the reason the Senator from Wisconsin, Senator Kohl, was so concerned about this and brought this amendment to the floor. These are not idle concerns we have had over here. We have been termed all sorts of things the last few days. One that stuck in my mind from the other side is we are liberal Democrats favoring big Government. Liberal Democrats favoring big Government. That is all we are doing--favoring big Government. This is the reason we are opposing S. 343. Mr. President, that is not the case. I am as concerned as anybody in this body about the health and safety of people across this country. I am as concerned as anybody about having a regulatory system in this country that does not permit excesses but, at the same time, hits that balance of protecting the people from the kinds of things we are talking about here this morning. It protects the people of our country whose health and safety has been hard won over the last 25 years. Have there been excesses? Of course there have been excesses. But by and large have we had people's lives saved? Are our children breathing safer air? Are they drinking safer water? Are they protected more from food illnesses, and so on, than they were back 25 years ago? Yes, the answer is, and these regulations have done that. They have made a better, safer America. Have there been times when things were overregulated, when people overregulated, got carried away by the particular regulation and went too far with it? Sure there are, and we ought to correct that. But to take a chance of rolling back the clock and saying, as a means of getting more money, disregarding the selfish greed some people might have, that we will let up on these regulations or will somehow make it more difficult to protect health and safety, I think is just plain wrong. That is the reason why we, at the appropriate time, will offer our amendment, S. 1001, as a substitute, because we think it does hit that better balance. It does not have the excesses that S. 343 has. Mr. President, I only ask one thing, before I yield the floor, and that is when we bring examples to the floor, from now on, from whatever source, on whichever side of the aisle, we document these charges being made, the horror stories about rules and regulations and how maladministered they have been. I will return to the statement I started out with. The civil service people and the rules and regulations writers, basically, in this country, are people as fine as anybody in this body; as fine as any Senator. They are just as dedicated to their country. They are just as dedicated to the health and safety of this country as anybody in this body. And they are on the firing line. They are charged with administering these things out there. And I do not think we often appreciate it. We castigate them there as though most civil servants administering these things are somehow deficient in mentality, I guess, and cannot administer with some sort of modicum of just plain old common sense. Yet it is just exactly the opposite. These people are as dedicated as anyone here. If we want to see who is misleading them there, look in the mirror. That is what I tell my colleagues here. Because 80 percent of the regulations that are written are written pursuant--they are required by the legislation we pass here; 80 percent. We had that testimony in committee. That is the best estimate we can make, is 80 percent are required to be written by what we put in legislation here. So I think our efforts at regulatory reform are good. I think, out of all this debate, we will come out of it with better legislation, better requirements. But, at the same time, I say we should be requiring these same kinds of cost analysis, risk assessments, in the first place, right here. We should be looking at that before we pass legislation, not sending it over there and then griping about the people on the other side, downtown in the agencies, who are trying to administer the laws we pass and then we give them the devil because we did not give them enough guidance in the first place and they come up with something we do not like. We say, ``Oh, isn't it terrible?'' I would like to see us take these same laws and requirements and require ourselves to do these thing before we pass legislation here on the floor. That would make common sense. Maybe we would really restore confidence in Government at that time. I see the Presiding Officer getting a little nervous about my time here. I know I am a few minutes over, and I appreciate his indulgence. I yield the floor. Amendment No. 1539

Mr. GLENN. What I pointed out were things where the examples you gave were flat wrong. That is the point. Those are the ones I pointed out. They were flat not true, and I refuted a good portion of the ones that were pointed out here on the floor. Everyone knows there is overregulation. I agree with that.

Mr. GLENN. I just gave the data, the specifics of each case here. You must not have been listening.

Mr. GLENN. I am sure that would not be satisfactory. I think we had some people who wanted to speak on that side on that. I will see if we can come up with a time agreement.

Mr. GLENN. I already said I cannot accept a time agreement until I talk to the people who want to speak on this subject. I will object to it. Go ahead and propound it.

Mr. GLENN. I agree with that.

Mr. GLENN. I agree with that.

Mr. GLENN. We have a list of amendments we can proceed through today all right. We have about, I think there are six or seven substantive amendments, and we do not have time agreements on any of them. We have to discuss time agreements as we go along. I join my friend; I hope we can do that.

Mr. GLENN. We will have meeting in a little while to determine when we will be bringing it up. It will be brought up. There is no doubt about that.

Mr. GLENN. I will have to check into that. Maybe we could. I do not know yet. What time would be suggested on Hutchison?

Mr. GLENN. We have people interested in speaking on this. They are on their way over now. I do not know how much time they may require. I could not commit to any time agreement at this moment.

Mr. GLENN

Mr. GLENN. Mr. President, we have talked for many days on the very real need for regulatory reform. While I recognize the tremendous value of many rules in protecting public health, safety, and the environment, I also understand that Federal agencies too often ignore the costs of regulation on businesses, State, and local governments, and individuals. Through sensible, balanced reform, we can restore common sense to government decisions and thereby improve the quality and reduce the burdens of Federal regulations. Over the past few weeks, and the past few days, we have worked in good faith to explain why we think S. 343 as currently drafted is not the kind of regulatory reform we can support. The majority leader has offered amendments that have indeed made some improvements in his own bill. The threshold for a major rule is now $100 million. We have added in a statement clarifying that the cost-benefit test shall not be construed to override any statutory requirements, including health, safety, and environmental regulations. The provision covering environmental management activities has been dropped. But these changes alone do not make for balanced regulatory reform. We are still faced with a bill loaded with petitions that would let interested parties tie up agencies in knots. We are still faced with a bill that is a dream for lawyers and special interests. We have stated all of these and other concerns very clearly to the proponents of S. 343. We have worked in good faith to make this a workable bill. In the end, we still feel that there are too many problems with the bill before us. And clearly the proponents of S. 343 also realize the problems with their bill, as shown by the amendments they have been offering themselves to improve their own bill. That is why I am offering the Glenn-Chafee amendment as a substitute for S. 343. This substitute is based on the bill reported out of the Governmental Affairs Committee on a bipartisan basis, 15 to 0. Like the Governmental Affairs bill, the amendment I am offering to S. 343 has bipartisan support. I am offering the amendment on behalf of myself, Senators Chafee, Levin, Lieberman, Cohen, Pryor, Kerry, Lautenberg, Daschle, Boxer, Kohl, Simon, Kennedy, Dodd, Murray, Akaka, Jeffords, Biden, Dorgan, Baucus, and Kerrey. I am offering this legislation because I believe the reforms contained in the Dole-Johnston bill are outweighed by the creation of new opportunities to stop environmental and health and safety protections for the American people. It is time to directly compare these proposals and to ask which proposal better fulfills the dual tasks of eliminating unnecessary regulatory burdens on business and individuals while at the same time providing no diminution in the ability of Government to protect the health, safety, and environment of the American people. I believe that our substitute provides the best answer. It is a very strong reform proposal. It requires cost-benefit analysis, risk assessment, peer review, congressional review of significant rules, and review of existing rules. It provides much-needed reform without paralyzing agencies. Issues--such as how much judicial review is needed and how we should handle existing rules--are critical in this debate. Our principles for regulatory reform are the following: First, cost-benefit and risk assessment requirements should apply to only major rules, which has been set at $100 million for executive branch review since President Reagan's time. While S. 343 has increased its threshold to $100 million, it also contains an amendment that was accepted on Monday that would include any rules subject to Regulatory Flexibility analysis as a ``major'' rule. What we have improved on the one hand by increasing the threshold to $100 million, we have taken away with the other hand by increasing the number of rules that would fall under the requirements of this bill by up to 500 rules. It's too much. Second, regulatory reform should not become a lawyer's dream, opening up a multitude of new avenues for judicial review. Our amendment limits judicial review to determinations of: First, whether a rule is major; and second, whether a final rule is arbitrary or capricious, taking into consideration the whole rulemaking file. Specific procedural requirements for cost-benefit analysis and risk assessment are not subject to judicial review except as part of the whole rulemaking file. S. 343 will lead to a litigation explosion that will swamp the courts and bog down agencies. It would allow review of steps in risk assessment and cost-benefit analysis, in addition to the determination of a major rule and of agency decisions to grant or deny petitions. It allows interlocutory judicial review for the first time--letting lawyers sue before the final rulemaking. It alters APA standards in ways that undermine legal precedent and invite lawsuits. And it seems to limit agency discretion in ways that will lead inevitably to challenges in court. Third, this legislation should focus on regulatory procedures and not be a vehicle for special interests seeking to alter specific laws dealing with health, safety, the environment, or other matters. Our amendment focuses on the fundamentals of regulatory reform and contains no special interest provisions. S. 343 provides relief to specific business interests that should not be considered in the context of regulatory reform. I am referring to provisions, for example, where the bill restricts the toxic release inventory [TRI], limits the Delaney Clause. Yesterday, the proponents of S. 343 voted once again for the special interests and against the public interest in refusing to protect the TRI. Fourth, regulatory reform should make Federal agencies more efficient and effective, not tie up agency resources with additional bureaucratic processes. Our amendment requires cost-benefit analysis and risk assessment for major rules, and requires agencies to review all their major rules by a time certain. S. 343 covers a much broader scope of rules and has several convoluted petition processes for ``interested parties''--for example, to amend or rescind a major rule, and to review politics or guidance. These petitions are judicially reviewable and must be granted or denied by an agency within a specified time frame. The petitions will eat up agency resources and allow the petitioners, not the agencies, to set agency priorities. Fifth, regulatory reform legislation should improve analysis and allow the agencies to exercise common sense when issuing regulations. Our amendment requires agencies to explain whether benefits justify costs and whether the rule will be more cost-effective than alternatives. S. 343 has two separate decisional criteria that control agency decisions--for cost-benefit determinations and for regulatory flexibility analyses. The reg flex override actually conflicts with the cost-benefit decisional criteria. And the cost-benefit test limits agencies to the cheapest rule, not the most cost-effective one. Sixth, there should be sunshine in the regulatory review process. I am pleased that my colleagues have accepted my amendment to S. 343 to ensure sunshine in the regulatory review process. I am only sorry that it took so long for the proponents of S. 343 to accept it. We offered it several times in the negotiations, and they rejected it each time. At least now, there will be sunshine. As I have said before, the text of this alternative bill is almost identical to S. 291, except in three main areas. First, it limits the definition of major rule to $100 million impact this, there is no narrative definition, such as ``substantial increase in wages''; second, we have changed the review of rules in a way that makes more sense and that does not automatically sunset rules that have not been reviewed; and, third, it covers only particular programs and agencies for risk assessment requirements and it makes other technical changes in line with the National Academy of Science approach to risk assessment. In addition, our substitute reflects positive changes that have been arrived at through negotiations on the underlying bill. I believe this is a very strong and balanced approach to regulatory reform. It passes the two tests I believe any regulatory reform legislation must achieve: First, it will provide regulatory relief for business, State and local governments, and individuals. And, second, at the same time, it protects the health, safety and environment of the American people. Let me conclude by saying that same progress has been made over the past few weeks in improving S. 343. But let us not leave the impression that the bill is close to being acceptable. This is not the case. There remain substantial issues, which we have communicated on numerous occasions to the proponents of this bill and on which no agreement has been forthcoming. These issues are satisfactorily addressed in the Glenn-Chafee substitute amendment. Accordingly, I urge my colleagues to vote for this amendment as a substitute to S. 343.

Mr. GLENN

Mr. GLENN. Yes. We were getting in a little time situation here where the Senator from New Jersey was going to speak I believe on a similar subject. I wanted to make sure everybody was aware of what the parliamentary situation was in case the majority leader comes back to the floor and we finish the work on the Johnston amendment.

Mr. GLENN. Mr. President, parliamentary inquiry: Earlier on we were waiting for a reply to a proposal by Senator Johnston on the Superfund withdrawal bill. The majority leader indicated that he would check on his side and get back to us. I believe it was agreed--correct me if I am not correct--that the Senator from California, Senator Boxer, was to be recognized to speak on her amendment with the idea that, if the majority leader came back, we would then complete action on the Johnston proposal after which time she would be permitted to continue. Is that correct?

Mr. GLENN

Mr. GLENN. I would point out to my friend from Delaware the exception for that would only be for 180 days. Then it has to go through all the reanalysis and may be held up for years.

Mr. GLENN. But it is judicially challengeable. And there is nothing in there that says it is not challengeable.

Mr. GLENN

Mr. GLENN. Will the majority leader yield for a question? As I understood this, and so we straighten it out--I checked with the Parliamentarian a moment ago. I think there was a little doubt as to the order here. As I understood it, it was this: Domenici, 20 minutes; Lautenberg; back to Domenici, then at the end of that; then Feingold, Pryor, Hutchison, back to Feingold again, and Kennedy tomorrow probably; is that correct?