John Johnston

Mr. JOHNSTON

Mr. JOHNSTON. May I suggest here a way, perhaps, to get at this question of conflict? Part of my problem is to say that ``in the event of conflict''--in my judgment there is no possibility of conflict. We have written conflict out. So, therefore, you do not want to admit the possibility of that which you have written out, which injects its own ambiguity. So you ought to take that phrase out and simply say that nothing herein shall derogate or diminish or repeal or modify the health-based standards or the technology-based standards of environmental statutes--or words to that effect.

Mr. JOHNSTON. I thank the Senator. I think we made progress.

Mr. JOHNSTON. Oh, of course.

Mr. JOHNSTON. Of course. Of course.

Mr. JOHNSTON. What I am saying is we do not define what--conflict. What we really mean is the substantive requirements of a health-based standard or a technology-based standard; that those health-based or technology-based standards shall govern. And we do not mean that the procedures under which the rule was adopted shall govern. If you can get an appropriate way to phrase that concept, I certainly would recommend it. Even though I think it is clear, we want to reassure where we can.

Mr. JOHNSTON. I certainly will. Does the Senator understand my problem with the phrase, ``in the event of conflict, the statute under which the rule is promulgated shall govern''?

Mr. JOHNSTON. We are reading actually from the substitute. In any event, it says, ``reasonably identifiable, significant favorable effects, quantifiable and nonquantifiable, including social and environmental health and economic effects.'' We did not want to go into a laundry list because my friend knows the old rule about specifying one thing excludes those matters not specified. You will remember the old rule from law school. That is the problem here. But it is, I think, really clear. To get back to your question of the underlying statute governing, I insist that it is absolutely clear. Nevertheless, I would recommend to my colleagues a clarification, if the clarification does not inject its own ambiguity.

Mr. JOHNSTON. I tell my friend that it is indeed a complicated statute. But I think it is clear, and the problem is that--you talk about will ``social'' embrace all these things. We say ``benefit'' means the reasonably identifiable--this is page 13, section 621(2), line 8: The term benefit means ``reasonably identifiable, significant favorable effects.''

Mr. JOHNSTON. It says, ``In the event of a conflict, the statute under which the rule is promulgated shall govern.''

Mr. JOHNSTON. I would have no problem with proper language to do that. The problem is that, first of all, I think we have very clear language right now. I think it is very clear. The offered language creates its own ambiguity.

Mr. JOHNSTON. That is absolutely the intent.

Mr. JOHNSTON. Under the law of the Supreme Court, in the Chevron case, the last and most definitive case I know of on the issue, they say specifically if the Congress has specifically spoken to an issue and the intent is clear, then the agency must follow the intent of Congress--``Must'' follow.

Mr. JOHNSTON. And if it is within the realm of discretion of the administrator----

Mr. JOHNSTON. I would like to see that because we have talked about these hypothetical clashes. You see, in your hypothetical, the benefits justified the cost, because in the first instance you saved lives----

Mr. JOHNSTON. It is maximum achievable controlled technology, which is not stated in parts per million. There are other standards. For example, there are radiation standards that do specify so many rems or millirems per year, et cetera. The Clean Air Act is maximum achievable controlled technology. That gives to the administrator a broad discretion as to what is maximum and what is achievable; that is to say, what is on the shelf.

Mr. JOHNSTON. Not true, Mr. President, I tell my colleague, because there is nothing here--first of all, I do not know of any statute that says a minimum of so many parts per million with discretion to go higher.

Mr. JOHNSTON. Yes, well, did----

Mr. JOHNSTON. I do not think you disagree with that.

Mr. JOHNSTON. A measure would be made as to the rule, the rule as interpreted by the agency. That is what is subjected to the benefit- cost ratio.

Mr. JOHNSTON. If that is so, the benefit justified the cost.

Mr. JOHNSTON. You see, his hypothetical was that if you add a little bit of extra cost, you get a big benefit.

Mr. JOHNSTON. I do not know whether the Senator understands what I am saying. Did the benefits justify the cost of your--what was it--did they or did they not?

Mr. JOHNSTON. Yes, but you see, all of those costs, whether quantifiable or nonquantifiable in the first instance, to determine whether the benefits justify the cost, were taken into consideration. So I ask under your hypothetical, are you telling me that the quantifiable and nonquantifiable benefits would not justify the cost, whatever the statute said?

Mr. JOHNSTON. If so, you can take into consideration for the purpose of your benefits justifying your costs.

Mr. JOHNSTON. You can certainly quantify statistically those things. You cannot quantify the value and the value of the benefit.