John Johnston

Mr. JOHNSTON

Mr. JOHNSTON. Mr. President, I yield to no one in this body on my enthusiasm for risk assessment. It was I who first proposed, wrote, and passed twice a risk assessment provision, which did not pass the House, of course, and so we are here today working on this legislation. I believe the concept of risk assessment is one of the most important things we can ever do for this Government. It will save, I believe, hundreds of billions of dollars. It will relieve taxpayers and citizens of this country of huge and unnecessary burdens and will allow the means that we have, the dollars that we have in this country, to be spent on environmental and health and safety matters, to be applied to environment and safety and health matters and not to waste, as it is today. Now, having said that, Mr. President, I rise in enthusiastic and very strong support of this amendment. The reason is that this amendment and the application of this procedure to Superfund, as well as to defense cleanups, as well as to cleanups under the Solid Waste Disposal Act, do not fit. They do not fit, Mr. President. We have been talking about Superfund, and I concur with comments of my colleague from Montana, that that needs to go through that committee. That committee voted out and passed that bill last year. We need to do that again this year. Mr. President, we have not spoken about cleanup at defense plants. Cleanup at defense plants is an activity on which we are presently spending over $6 billion a year. It is the largest cleanup activity of the Federal Government. Now, Mr. President, we commissioned a report on the Hanford site, which is the most difficult site and the most expensive site of the DOE. They came back with a horror story about how money is being squandered and nothing is being done. I will not go into all the reasons, but the principal reasons are that the legal matrix, the legal framework that we in the Congress have created for Hanford as well as other DOE sites, does not work. We not only have the Superfund, which is applicable to Hanford, we have RCRA, which pertains to chemical wastes. We have a tripartite agreement setting standards, dates, and requirements--dates that cannot be met, standards that have not been passed, and using technologies that do not exist. Moreover, Mr. President, we have superimposed upon that an act we call the Federal Facilities Act, under which the Federal Government can be sued and the Assistant Secretary of Energy can be put in jail-- something he is very concerned about--if they do not meet standards and dates that are impossible to meet because there is no place, for example, to store the waste, because the waste isolation pilot plant is not ready, and that is the only place available for some of these mixed wastes. Mr. President, it is probably only the Congress of the United States which could have designed a legal framework as confusing, as contradictory, as difficult, as unworkable, as unbelievable as we have created for our defense plants' cleanups. Now, Mr. President, the Senator from Alaska [Mr. Murkowski] and I have proposed legislation for Hanford. We have proposed to deal not only with CERCLA but RCRA, the Federal Facilities Act, the tripartite agreement. We proposed to reconstruct that and do it over again. It is not that we do not want to use risk assessment. Risk assessment is central to the issue. It is a risk assessment procedure that would be vastly different from that which we have constructed in this bill. This bill constructs risk assessment principally for Federal rulemaking, EPA-type rules. It is workable, a good procedure, which, Mr. President, I am very proud of the handiwork in the Dole-Johnston bill. I think it is workable. I think it will improve environment. I think it will improve health. It will save lots of money. It is a very, very good bill. But it does not fit for defense plants' cleanups. We have to deal with those tripartite agreements. They have, Mr. President, as I am sure all my colleagues know, a problem at these defense plants, what we call mixed waste--mixed chemical waste and mixed nuclear waste or radioactive waste. One set of regulations for radio-active waste, one set of regulations for chemical waste, and no technology yet to deal with the mixed wastes. Some promising research is being done, and no place to put the waste. Literally, our Assistant Secretary of Energy, unless we change the law, can go to jail for not doing what is impossible to accomplish. Absolutely that is true, Mr. President. The waste isolation pilot plant is not ready. By the way, the reason it is not ready is also because we do not have a well-working risk assessment bill. If we did, they would have done the risk assessment and would not be doing some of the silly things they are doing down in Carlsbad, NM, on delay and unnecessary expense in the plan. Be that as it may, WIPP is not ready and we have no place to put the waste and we do not have the technology. It is a grand and glorious mess. What we propose if we can pass our legislation, Mr. President, is create this paradigm, this legal matrix, limit it to Hanford, and then we propose to use that as the model for other defense plants. We will have to modify it--things are a little bit different, at Rocky Flats in Colorado, et cetera. Each one of these sites has their own peculiarities. Some have a lot of plutonium, some have a lot of mixed waste. Hanford has almost every imaginable kind of waste. Each of those deserves the time and attention, in the case of defense plants, of the Energy Committee; in the case of CERCLA, of the Environment and Public Works Committee. They are different problems from those we seek to serve in the Dole-Johnston bill presently pending. Mr. President, in including Superfund and environmental cleanup [[Page S 9853]] in the original Dole-Johnston amendment, we knew at the time that we included it that it would be subject to an amendment and that it would probably come out. I say ``we'' knew that; I do not want to speak for anybody else but myself. Let me say that I and my staff knew it and we discussed it, and I think the feeling was at that time that it should be included in the draft in order, first, to draw attention to the issue; second, to give some leverage in assuring that we would deal with the question of Superfund and of defense cleanup. Indeed, we have had Senator Baucus, the ranking member, come and say that he is anxious, willing, and able and can virtually promise that that committee will deal with the issue. I think there are Members who are so anxious for risk assessment to be made part of CERCLA that they want to get those assurances. I think now we have heard those assurances on the floor of the Senate. I hope, therefore, with those assurances, that the committee such as Energy and Natural Resources, with respect to defense plants, can proceed and do our business and enact the legislation that Senator Murkowski and I presently have pending. I hope that the Environment and Public Works Committee will expeditiously report out that bill again which we passed last year, and that we can get on and pass this risk- assessment cost-benefit legislation presently pending. Mr. President, I am getting more hopeful and more confident as the hours pass, that the spirit in this Chamber is such that it will allow the Senate to pass this bill with a strong bipartisan effort. I think acceptance of this amendment will be a strong indication of that. I hope we can vote soon.

Mr. JOHNSTON. Reserving the right to object. And I appreciate my friend from Utah working on this issue of the environmental cleanup, and I hope we will successfully do it. I note that we have been on the amendment for about 3 hours and that it is not a delay coming from this side. I simply mention that to say that I hope we will be able to get time agreements from now on and be able to move expeditiously. We made great progress today so far. And we will continue.

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

Mr. JOHNSTON. Mr. President, I ask unanimous consent that coauthors be added to the pending Baucus amendment as follows: Senators Johnston, Lautenberg, Bradley, Murray, Feinstein, Reid, Moynihan, Glenn, and Kennedy.

Mr. JOHNSTON. I have heard from many of those Senators involved in the issue, all of whom are anxious to move forward with Superfund in their committee, and I think there is no hesitation in moving forward. I was told this morning that Senator Smith, who chairs the subcommittee on Superfund, is anxious to move forward but did not want to vote on this; he would rather have it done by the majority leader by unanimous consent. That is the reason I asked for the majority leader's attention.

Mr. JOHNSTON. Madam President, I think it may be appropriate to temporarily lay this aside unless someone has any problem with it, and I think Senator Boxer is ready to move with her amendment under a time agreement. So is there any problem with temporarily laying this aside? Madam President, I ask unanimous consent that we temporarily lay the pending amendment aside.

Mr. JOHNSTON. I thank the minority leader, and I thank the majority leader for his willingness to accommodate this legislative process.

Mr. JOHNSTON. I withdraw that request.

Mr. JOHNSTON. Madam President, this is the amendment which removes from the bill the environmental cleanup, or so-called Superfund activities. I ask for the majority leader's attention on this matter because we talked about that this morning. I understand that the majority leader may be willing to withdraw the Superfund provisions from the bill. I also understand that Senators may prefer it be withdrawn by unanimous consent rather than have a vote on it. If that is possible, we would be delighted to have that done at this time. That would avoid the debate and the vote. unanimous-consent agreement

Mr. JOHNSTON. That is right, environmental management activities, the whole section, just withdraw that.

Mr. JOHNSTON. Madam President, I send an amendment to the desk and ask for its immediate consideration.

Mr. JOHNSTON. Madam President, while the majority leader is on the floor, I would like to send an amendment to the desk and see if we can deal with this at this time. Amendment No. 1517 to Amendment No. 1487 (Purpose: To delete the section on ``Requirements for Major Environmental Management Activities'' relating to cleanups under the Solid Waste Disposal Act, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, and other similar activities)

Mr. JOHNSTON. Madam President, will the minority leader yield for a question?

Mr. JOHNSTON. Madam President, the Senator from Ohio [Mr. Glenn] pointed out day before yesterday a real fault with this bill, which was that the provision on page 25 of the so-called Dole-Johnston amendment relating to health, safety, or emergency exemptions from the cost- benefit analysis, provides that a rule may go into effect immediately if an agency for good cause finds that conducting cost-benefit analysis is impractical due to an emergency or health or safety threat that is likely to result in significant harm to the public or natural resources. But under that rule, not later than 180 days after the promulgation of such rule, the agency must comply with the subchapter; that is, they must complete the cost-benefit analysis, and under another section of the bill can complete a risk assessment if that is required. Madam President, 180 days, as the Senator from Ohio pointed out, simply is not enough time to get this done. This amendment extends that period to 1 year. So that, if there is a threat to the public health, safety or the environment, or if there is any kind of emergency, the agency can promulgate the rule, get it out, put it into effect immediately upon the declaration that they do not have time to do otherwise. This would give them then the year to do the cost-benefit or the risk analysis. Keep in mind also that under other provisions of this bill cost- benefit analysis and risk assessment may be done in such form as is appropriate to the circumstances; that is, it can be done informally sometimes. Under some circumstances, for example, scientific reports which had been peer reviewed could be used and put into the record in lieu of conducting a brand-new peer review risk assessment. So we believe this would be enough time appropriately to finish such a review. I want to thank the Senator from Ohio for pointing this out. It will make this a much better bill.

Mr. JOHNSTON. Madam President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. JOHNSTON. Madam President, I think the Senator's suggestion is a good one which I think we ought to move forward with in the conference committee. I will point out that there is nothing here that let us say they could not get done in a year. There is nothing in this language that says it is only a one-shot deal. They can put forth another major rule at the end of that year and start the 1-year process all over again. So the emergency is really protected by the fact that it says that you can. But in any event, I would be more comfortable with some kind of Presidential waiver. I think we could work on that between now and conference.

Mr. JOHNSTON. Madam President, I move to reconsider the vote by which the amendment was agreed to.

Mr. JOHNSTON. I had urged the majority leader today not to go forward with the motion. I am glad he has delayed it. Does this delay meet with the full approval of the minority leader?

Mr. JOHNSTON

Mr. JOHNSTON. Will the Senator yield for a question?

Mr. JOHNSTON

Mr. JOHNSTON. That one of the bases on which EPA brings enforcement actions is TRI releases.

Mr. JOHNSTON. Just on the point that the Senator said that EPA is not arresting anybody. According to ``Inside EPA,'' the weekly report for June 30, 1995, they do say that 3 priority sectors for determining enforcement actions were chosen because of noncompliance histories, toxics release inventory releases, and trans-regional impacts. In other words, TRI releases are one of the bases on which they bring enforcement actions. Would the Senator agree with that?

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

Mr. JOHNSTON. Mr. President, I rise in opposition to the amendment of the Senator from New Jersey. The language now in the Dole-Johnston substitute, I believe, is well tailored, calculated to achieve that result which all of us want, which is notice to the public of a toxic chemical which, under any reasonable scenario, can be expected to do some harm. The problem is under the present statute, a chemical can be or, indeed, must be listed by the Administrator of EPA if it is known to cause serious chronic health effects. There are a lot of other provisions, but let me reread that: If it is known to cause serious or chronic health effects. That phrase is so broad and so all encompassing as to encompass ordinary table salt, ordinary table salt which, if taken in sufficient quantities or, indeed, if ingested regularly in slightly too much degree can and does cause high blood pressure, and it can kill you if you take too much salt. Indeed, people out on boats in the ocean have ingested too much sea water and have died because of that. I am not suggesting here that the Administrator of EPA is getting ready to list ordinary table salt as one of the chemicals. That is not the point. The point is that the phrase, as used in the present law, is so broad that it does not just look at the reasonable possibility of harm to an individual. Rather, it looks at the chemical in an absolute way, without requiring that you consider whether there is any possible danger to the public from the way the chemical is used. So what we have done, Mr. President, is added a few words to this so that when the Administrator makes a determination under this paragraph, it shall be based on generally accepted scientific principles, or laboratory tests, or appropriately designed and conducted epidemiological or other population studies. That is in the present law. We have added this: ``And on the rule of reason, including a consideration of the applicability of such evidence to levels of the chemical in the environment that may result from reasonably anticipated releases available to the Administrator.'' So, in effect, we are saying do not just look at whether ordinary table salt can cause you to be sick, or can cause high blood pressure, or can poison you if you take too much of it; rather, look at ordinary table salt, or whatever these other chemicals are, and determine whether using, as we say, the rule of reason, including a consideration of the applicability of such evidence, to the levels of the chemical in the environment that may result from reasonably anticipated releases. All we are asking, Mr. President, is that you use common sense, and that you do not just say because a chemical may be potentially harmful if ingested in ways that are unlikely--not only unlikely, virtually impossible--but rather use, Mr. Administrator, the rule of reason. I cannot think of a more reasonable amendment than to tell the Administrator to use the rule of reason. Does this gut the toxics release inventory? Of course not. It simply brings a little common sense. Now, the amendment goes further. It says that ``any person may petition the Administrator to add or delete a chemical, and that the Administrator shall grant any petition that establishes substantial evidence that the criteria in subparagraph (a) either are or are not met.'' That is the language we added. In other words, you can get a chemical put on. If you are, say, an environmentalist and you want to add a chemical, you can petition to get it added if you meet that standard, or you can get the chemical deleted if you meet that standard. That is all the language does, Mr. President. Now, you say, well, why would anybody want it to be off the list? Well, first of all, Mr. President, it is not just a question of having these chemicals listed, it is a burdensome and expensive system of having to report. A chemical manufacturer sells these chemicals across the country, and it might be a very benign chemical in the way that it is used. But each one of his vendees would have to report, and on down the line--I forget the amount that you have to have--it is 10,000 pounds, which for an industry is not very much. You would have to report that, even though there is no real possibility that the chemical is ever going to get out. Now, Mr. President, I do not think that we have to worry about language that asks the Administrator to use the rule of reason in determining whether to put a toxic chemical on the list. I honestly think that any Administrator knows how to interpret those words. Now, why was it necessary to put these on? Well, because in one day this last year the Administrator listed another 280 chemicals on the toxics release inventory, and the EPA felt that it had no authority, it had no discretion to determine whether there was any danger posed to the public by these chemicals, whether there was any possibility of harm. They felt that under this language, they had to list all 280 chemicals. Maybe the neighbors are upset and they say, oh, my gosh, you have all these terrible chemicals there that can cause all these terrible things --perhaps most of them or perhaps almost all. I do not know about the individual chemicals, Mr. President. But I am told by some people in the EPA--who will not be quoted, I can tell you that-- that some of these chemicals are really no problem, should never have been on the list, but there was not the discretion in the Administrator to apply the rule of common sense and reasonableness. Mr. President, this is not some big industry grab to force these chemicals on people across the country without warning, this is an attempt to apply the rule of reason to a very complicated thing. Look, if the Administrator goes back, and somebody complains about this, the Administrator could say it is a toxic chemical, I think it is possible that it might get out, and believe me that ought to be on the list if it is possible the chemical will get out and cause harm. The Administrator has all the authority under this language that he or she would ever need to put that chemical on the list. But, on the other hand, if it is no conceivable danger whatsoever, if you have a table salt kind of chemical, it should not be on the list and the Administrator ought to have the discretion to use the rule of reason and relieve people of these reporting requirements and relieve the community of the unnecessary fear in which a benign chemical might present. That is all the language does, Mr. President. It is not gutting the toxics release inventory. It is not, in any way, harming the health of people. Why should it be on this bill? Because it is a question of risk, and this [[Page S 9889]] gives to the Administrator the judgment to apply real risk analysis in order to put chemicals on the list or take them off. I yield the floor.

Mr. JOHNSTON. Mr. President, while we are waiting, I have two amendments here that have been cleared. One is proposed by Mr. Baucus and myself. It would change ``shall'' to ``may'' in that provision of the bill that states that the authorizing committee may submit to the Appropriations Committee changes in the schedule, and that the Appropriations Committee then--now it reads ``shall propose those amendments to the Senate.'' And we want to change that ``shall'' to ``may.''

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