John Johnston

Mr. JOHNSTON

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

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

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, will the Senator yield?

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, will the Senator yield me 10 minutes?

Mr. JOHNSTON. Will the Senator withhold?

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

Mr. JOHNSTON. So you have--that is five. If two of them do not require record votes, that is a maximum of three, and we could let our colleagues go home and see their dog Billys.

Mr. JOHNSTON. I think we have a good chance of being able to work out some of these without a record vote. We have some changes I think we can work out with Senator Domenici and then, at least from my standpoint, that would probably not require a record vote. Senator Pryor's amendment does not sound as though it would require a record vote. At least, speaking for myself, it sounds reasonably noncontroversial.

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

Mr. JOHNSTON. Will the Senator yield?

Mr. JOHNSTON. Mr. President, reserving the right to object, were there any--did this ask for no second degrees on any of those amendments?

Mr. JOHNSTON

Mr. JOHNSTON. Mr. President, if the leader will yield, Senator Lautenberg has a request for a 1-hour time agreement. That would be a good 1-hour window right there.

Mr. JOHNSTON. Mr. President, I have cleared this request with Senator Lautenberg and with Senator Lott. I ask unanimous consent that when an amendment by Senator Lautenberg, which deletes the language of the toxic release inventory, is considered, that there be 1 hour evenly divided; that no second-degree amendments be in order; and that there be a vote up or down on the amendment.

Mr. JOHNSTON. Was that reached, Mr. President?

Mr. JOHNSTON. I ask unanimous consent that the pending amendment be agreed to and that a motion to reconsider be laid on the table.

Mr. JOHNSTON. What is the pending business? Amendment No. 1517

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

Mr. JOHNSTON. I say to my colleagues that I think that is in the works. That is, I have requested that we be able to do that. And so I hope after the vote on the Boxer amendment, we would be able to accept that by unanimous consent. I would assume that no one on our side would object. But I would like to get that notice out just in case.

Mr. JOHNSTON. Reserving the right to object, and I shall not, I have had a conversation with the Senator from Utah and the Senator from Oklahoma about whether we would be able to accept the other pending amendment, which is the Superfund amendment, accept that by unanimous consent. Do we know whether we can do that at this time?

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

Mr. JOHNSTON. It is. And it has the effect of an interim final rule?

Mr. JOHNSTON. Mr. President, will the Senator yield for a question or series of questions, or does he want to finish his statement?