John Johnston

Mr. JOHNSTON

Mr. JOHNSTON. I thank my colleague and yield the floor.

Mr. JOHNSTON. This is a waste of time. If you want to kill this bill, enact this Glenn-Chafee amendment, beat your chest, feel good about it. It has risk assessment in the title of the bill, but it amounts to nothing, zero.

Mr. JOHNSTON. But no need to worry, all of those teeth are gone. You do not even have false teeth here.

Mr. JOHNSTON. That is exactly right. The Roth bill, which came out unanimously, out of Governmental Affairs, had a lot of teeth. The Senator and I have talked about that. My own view was I liked some of the teeth. I thought some of the other teeth were too sharp.

Mr. JOHNSTON. That is, even according to EPA's own studies. They had one study in 1987 that determined that risks conformed--the EPA study in 1987 entitled, ``Unfinished Business'' says that they ``systematically failed to properly rank risks.'' They ranked them according to public opinion rather than science. Then they came back 3 years later, in 1990, had another study from EPA's Science Advisory Board, and said they were continuing to do the same thing. I submit they are continuing to do the same thing today. And this same crowd is coming in and saying, trust us, we are doing it right, and no change needs to be made.

Mr. JOHNSTON. That is exactly correct. But they say, trust us, we will do them in our sole discretion.

Mr. JOHNSTON. The Senator has put it very, very well. No significant change. And your recourse, according to the Senator from Ohio, is to come to Congress.

Mr. JOHNSTON. It would even more clearly be consensual under those because they make sure, and they say, ``in sole discretion of the agency head,'' and then they go back, under section 625, and ensure that there is no appeal from the exercise of sole discretion. I do not know how you could otherwise have an appeal from the exercise of sole discretion, but they make sure that there is no appeal. It is nonenforceable. It is sort of the honor system, or I should say the buddy system, the bureaucratic buddy system.

Mr. JOHNSTON. There has been a risk assessment rulemaking rule out there--Executive order I should say--under every President since President Ford. By the way, I have a copy of it here. The problem is that it is consensual as well, and it is generally ignored, as my friend suggests.

Mr. JOHNSTON. Yes, of course.

Mr. JOHNSTON. If the Senator would allow me to answer that, first of all, on the reg flex, I did not support the reg flex. A big bipartisan vote of 58 votes approved reg flex. I really do not think it is workable. But the two Senators from Georgia, Nunn and Coverdell, have indicated that they would work on this and try to relieve the burden. Let me tell the Senator from Ohio, that is not the fault of this Senator. I suspect that if by any chance the Glenn-Chafee amendment got adopted, that it would have the Nunn-Coverdell amendment bit. Do not criticize Dole-Johnston for having Nunn-Coverdell. I was not for it, and the Senator would get it if he had it. With respect to the interlocutory appeal on the size of the rule, whether it is a $100-million rule or whether it is one that requires a risk assessment because it pertains to health, safety, and the environment, I had said all along that was a proposal which I put in. It was not in the original Dole amendment. It was meant to give agency heads flexibility and help. And if that is a real problem, it can come out. I think those who criticize the interlocutory appeal do not understand it. I mean, it is meant so agency heads will know at the end of 60 days whether they are going to have a challenge on whether it is a major rule. The problem you have now--for example, we had hearings on NEPA. If the Senator would follow through with me on this, we had hearings on NEPA and we found that EPA is spending $100 million a year on NEPA studies. As the Senator knows, an environmental impact statement is much more detailed and, in turn, much more expensive than an environmental impact assessment. But they always do an environmental impact statement rather than an assessment because they do not want to wait until the end of all this study and rulemaking and what have you and have to go back and redo it. That was, frankly, the idea of the interlocutory appeal. So that, if you do not complain about the size of the rule in the first 60 days, then that is forever sealed in. And if they do complain and do make the appeal, the agency head can moot the appeal by simply going back and agreeing to do the risk assessment and cost-benefit analysis. It is simply meant to help them. But if that is a problem, the whole thing can come out. Let me just make a remark or two and then I will yield the floor.

Mr. JOHNSTON. I have never said this ought to be consensual, that it ought to be solely in the discretion of the agency head. Never have said that. Never believed that. It simply is not so. I think we have delivered very, very well on this letter of mine.

Mr. JOHNSTON. Not that, no, indeed.

Mr. JOHNSTON

Mr. JOHNSTON. Mr. President, I wonder if the Senator from Massachusetts--he said he would need 45 minutes. Why do we not get an hour and a half time agreement, and we can yield back time if we do not need all of that.

Mr. JOHNSTON. Mr. President, will the Senator yield?

Mr. JOHNSTON. I think we would do well to get a time agreement.

Mr. JOHNSTON. I thank the Senator. On page 4, line 15 of his amendment, it says if the Secretary cannot make the certification required under section 1(C), he shall notify the Congress and publish his statement. 1(C) says, the main part there, that the benefits must justify the cost. Now, my question is, when the Senator says he cannot make the certification, does that mean he cannot in good conscience make it, or he cannot because he disagrees with it? In other words, is there any limitation on why he cannot make the certification?

Mr. JOHNSTON. Mr. President, as I listened to the Senator from Massachusetts, you would have thought we were repealing OSHA and MSHA, repealing the underlying law that protects workers and miners. Mr. President, this bill, the Dole-Johnston amendment, specifically takes into consideration that all of the standards of existing law remain in effect and are not overridden or changed. Now, the Kennedy amendment is based on two false premises. First, that good science is somehow an enemy of health and safety. It is exactly the opposite. And second, that somehow the Dole-Johnston amendment does not allow you to take into consideration the value of life, health and safety. And the amendment specifically states that administrators, or agency heads may take into consideration and increase the cost of regulation in order for benefits, nonquantifiable benefits to health, safety, or the environment. Moreover, Mr. President, the Kennedy amendment, while on the one hand seeming to suggest that you have to have benefits justifying the costs, in another provision about which I asked him, all the administrator has to do, if he does not want to comply with the fact that the benefits have to justify costs, is say he cannot do it. Why can he not do it? Well, he might not in good conscience be able to do it. He might not be able to do it because he disagrees. He might not be able to do it because he wants not to. And what does he do if he does not make this certification that the benefits justify the costs? All he has to do is publish it and send a copy to the Congress and no problem. In other words, Mr. President, this permits the administrator to waste the taxpayers' money because admittedly the benefits do not justify the costs and no problem; we will continue to do business as usual and waste the taxpayers' money without helping health and safety.

Mr. JOHNSTON. Mr. President, will the Senator yield me 2 minutes?

Mr. JOHNSTON

Mr. JOHNSTON. The Senator from Michigan had an amendment ready to go. I urged him not to bring it up at this time because I hope we can work it out over the weekend.

Mr. JOHNSTON. Mr. President, I ask the Senator, will this be the last vote today?

Mr. JOHNSTON. That would be voted on Monday.

Mr. JOHNSTON. Will the Senator yield?

Mr. JOHNSTON. I thank the Senator from Texas for her cooperation in working out on my behest a number of amendments. I believe this is a well-drawn amendment now. It speaks to a much needed principle of the law, and that is that Federal officials ought to tell the truth. And we ought to be able to rely on them when they do. This amendment carries out that policy. I enthusiastically support it.

Mr. JOHNSTON

Mr. JOHNSTON. Now, I also understand that their analysis shows that it has a $97 million impact, and under the President's Executive order, which calls for risk analysis, which has a $100 million cutoff, that would not qualify under the President's order as a major rule?