John Kerry

Mr. KERRY

Mr. KERRY. I thank the Senator.

Mr. KERRY. If the distinguished majority leader will yield the floor, would it make sense to set a time certain for a vote on the Hutchison amendment? Should we not work it out? Obviously as the day goes on, both sides may lose more people and therefore it would punish more not to have a time set in the event we do not work it out.

Mr. KERRY

Mr. KERRY. Mr. President, I think I will not need 10 minutes. I would like to respond, if I can, to the comments of the Senator from Louisiana and to the whole concept of what is really at stake in revamping the Right-to-Know law and its Toxics Release Inventory (TRI). First of all, we should remember that TRI is the Emergency Planning and Community Right-to-Know Act of Title III of Superfund. This program does not have the same breadth of regulatory reform we are reaching for in the bill before us. The fact is that this is a nonregulatory sunshine law and should be considered separately by the Senate Environment and Public Works Committee. In fact, Senator Smith on the Republican side has been doing a very good job of leading the effort to revamp the Superfund program and as Title III of that act this issue could be appropriately considered at that time. To date, however, there have been no hearings on this whole question of exactly what the impact of revamping the right-to-know law would be. In fact, there has not been a hearing on TRI in the Senate since 1991. Yesterday, I attended a press conference outside this chamber where members of the firefighter unions of the United States, representing several hundred thousand firefighters, said, ``Don't do this. Do not change the TRI structure today and thereby put firemen at risk.'' What the TRI structure does today is allows fire departments all across this country to be able to plan for what kind of fire they may be going into. Because of the TRI, communities have computerized knowledge of precisely what chemicals exist in certain companies, in certain buildings. When the fire department gets an alarm, they simply punch the computer and the data comes up on the computer screen immediately so that firemen have the ability to be able to don masks, maybe don protective gear, call in additional help, take special measures to secure the area, evacuate personnel. All of that knowledge comes about because of a simple concept called Right-to-Know. [[Page S 9890]] The TRI is not a regulation that does away with chemicals. It does not require companies to spend a whole lot of money to comply with regulations. It simply makes information available to businesses, to communities, and to citizens. That information allows citizens to then decide whether they think they are at risk and gives companies the information they need to help them reduce their wastes before they are created. It is the best tool to promote pollution prevention that we have in effect today. What is interesting about this, Mr. President, is that just by requiring companies to tell Americans what they are emitting into the air or land or water--solely by the requirement to let people know-- companies themselves have made important decisions about reducing wastes. So they have voluntarily removed 42 percent since its reception in 1988--two billion pounds--of the chemical emissions of this Nation. That is a remarkable success story, Mr. President. It does not come about because we in the Congress have created a whole convoluted regulatory structure where companies are required to reduced their use of chemicals. All that is required is companies that use large volumes of toxic chemicals tell Americans what they are putting into the environment. More than 2 billion pounds of emissions have been prevented as a consequence of that. That is a success story. It is really interesting to see the chart from the Senator from New Jersey over there that shows the comments of individual sectors of the industry. The chemical industry itself has found it useful. In point of fact, the former chairman of the Environment Committee, Senator Baucus, has yet to have one chemical company coming to them and saying, ``Get rid of TRI.'' It was not an issue in early regulatory reform bills or in the past two Congresses Superfund debates. It has just been snatched out of the air because clearly a few people decided they thought this got in their way. Mr. President, turning to the standard that the Senator from Oklahoma talked about, what the language in this bill currently does is, in effect, it applies a 180-day requirement for this risk assessment to take place. If it does not take place, the chemicals come off. So you already have a sword of Damocles hanging over the process. Because if the Administrator does not want to do it, or if they do not have the resources to do it, you may wind up taking out of here an automatic capacity to have a decision. But more important, the language says, ``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.'' ``Reasonably anticipated releases'' is the information we get from the TRI. So what they are doing is creating a standard that makes a judgment as to whether or not you are going to be able to put something on the TRI list using information that you have to have from the TRI list in the first place. And since you do not have it from the TRI list, you cannot make the judgment that is required here. That is called the proverbial Catch-22. It is a way of tying everybody up in a process that, in effect, kills the TRI concept. They can stand here and say, ``Oh, no, no, no, no; all we are going to do is have a little risk assessment,'' but the language of the risk assessment itself depends on reasonably anticipated releases being able to be determined. And unless you know what the company is emitting, there is no way to know what the reasonably anticipated release is going to be. So I respectfully submit this is one of those places where, again, the words are so important, and where an awful lot hangs in the balance.

Mr. KERRY. I will be happy--I do not want to yield on my time, but I will yield on my colleague's time for a question.

Mr. KERRY. I will just use a moment. Mr. President, the real issue here is very, very simple. The Senator from Louisiana is trying to explain how the test that they have set up is reasonable. The issue is whether or not there ought to be a test set up for a company that uses 10,000 pounds or more of a chemical or a company that produces 25,000 pounds or more. The issue is, should that company automatically tell people in the community what it puts into the air? It is very simple. And, by coming along with this notion we are going to go through all of this regulatory process with risk assessments and so forth, we are actually applying a series of standards and hoops to jump through that have no relevancy to the purpose of letting people know. They are creating a risk-based standard for something that does not have to be risk-based but is simply informational. And, on the basis of that, there are certain chemicals that may be, actually, under their standard, taken off the Toxics Release Inventory which, in fact, have a negative effect on people, but they do not fall under their standard because of the level of toxicity. So I say again, this is a very simple issue. This is a question of when Americans are living in a community where a company uses 10,000 pounds of a specific chemical or produces 25,000 pounds, whether that company ought to tell the fellow citizens who live in that community and who work in the plant, what it is that is being emitted. And by virtue of the law, we have taken 2 billion pounds of that kind of chemical out of the environment, away from people, and made life safer. [[Page S 9891]] If they turn this clock back, we will make life more hazardous. And there is no rationale for saying Americans should not know what chemicals are going into the local environment. I yield the time to the Senator from New Jersey.

Mr. KERRY. Again, I do not want to yield on my time. I reserve my time.

Mr. KERRY. Mr. President, how much time do I have remaining?

Mr. KERRY. Let me say to my friend, I understand his reading of it, but it still begs the question here. Because the standard of ``including,'' which is the most important way to prove what may be the harm to a community, is still not available. Second, and this is far more important, let me say to my friend from Louisiana, what is critical here is why go through all of these incredible hoops when in fact nothing negative is required of the company unless it uses more than 10,000 pounds and produces more than 25,000 pounds? You are talking about big producers and big users here. All that is required of these big, 10,000-pound users, 25,000-pound producers, is that they tell people in the community what it is they put into the air or water or land. It is irrelevant whether there is a risk or not in terms of the concept of sunshine and right-to-know. What, in effect, the Senator from Louisiana and others are setting up here--whether it is wittingly, purposefully, or not--is a new series of hoops which, under the cumulative impact of this bill will allow a series of legal steps to be taken that will prevent people in a community from even knowing what one of these big producer companies is putting into the air.

Mr. KERRY. Epidemiological.

Mr. KERRY

Mr. KERRY. The Government regulations on cabbage, Mr. President, are 1,808 words--only 208 words more than it took the Senator from Utah on June 28 to describe the problems with the 30,000 words and other silly regulations that do not exist. The truth is, according to the San Diego Union-Tribune: That cabbage quote has been kicking around for years. . . It cropped up as a Reader's Digest filler years ago. That is where Ronald Reagan admitted finding it . . . and the thing has obtained a life of its own. I ask the Senator from Utah if he has actually read the regulations, the 30,000 words, because here are 1,800 words, and what these 1,800 words do, Mr. President, is establish a capacity for the Federal Government to guarantee that those who grow cabbage get the highest price possible for the best cabbage by defining what will be the Grade No. 1 of cabbage and defining subsequently what is Grade No. 2 of cabbage. Farmers all across this country have appreciated and applauded the fact that a very precise definition of that standard exists, so that high-quality cabbage can command an appropriate price. I would suggest, Mr. President, that this really frames the debate here, in a sense. There is a rush to try to characterize very legitimate regulations as somehow excessive or unwanted when, in fact, if we stop and take a look at them, there are a number of examples of how these regulations assist people and make a difference to the lives of Americans. I repeat, there are some silly regulations. Every Member knows that. We ought to be engaged in a process here that allows Members to legislate in a [[Page S 9764]] way that tries to get rid of those that are legitimately silly but also allows us to improve this bill and to eliminate provisions which seeks to do things that I do not think any American wants to do. Let me give an example, Mr. President. There is a provision in this bill that weakens the toxics release inventory [TRI]. The TRI program originated in 1986. This important sunshine law is the most successful voluntary environmental program Congress has ever enacted. Yet all that the toxics release inventory requires is a right-to-know. Because of TRI, emissions from facilities have decreased 42 percent nationwide since 1988; a reduction of 2 billion pounds. If you are a citizen living in your community, and you have a large chemical plant or a small chemical plant or some business entity, and it is discharging toxins into the environment, the current law does not require them to stop discharging; the current law does not require them to stop using chemicals. It does not require them to stop producing chemicals. It does not require them to stop selling chemicals. This sunshine law does not require anyone to reduce their use of chemicals in any way; TRI only requires that companies that use over 10,000 pounds or produce over 25,000 pounds--a significant amount--of chemicals report the discharges from that usage on the TRI for everyone to see. It just requires them to tell the people in the community what they are emitting. I just came from a press conference where the head of the Firefighters Union, representing 200,000 firefighters in America, said if you get rid of this, you will cost firefighters lives and the lives of the citizens who they are trying to save. Fire departments need to be able to plan, to know what kind of fire they are fighting in a particular community. Under today's law, if you have a fire in a community, because of the toxics release inventory, they just punch up the information on the computer, and they can look at the business where they are going to fight the fire. They see precisely the kind of chemicals that are contained at that facility, and they know whether they need gas masks, whether they need full chemical enclosures, whether to expect an explosion, whether to evacuate. They know a whole series of things in the public interest, Mr. President. Since 1988, when the first reporting information was available, we have reduced the chemical emissions in this country by 42 percent voluntarily. Some 2 billion pounds of chemicals have been taken out of the exposure stream to American citizens. We did not require it. There is no law that made it happen. But, because these companies were required to tell people what they were emitting, they began to better understand themselves what the consequences were and they began to make some different judgments; judgments about how best to prevent pollution, how to better use and conserve their raw materials in order to waste less; how to make their processes more efficient and by so doing save money. There is no rationale, there is no scientific argument, there is no acceptable health standard argument, there is no environmental argument for coming in here in the Dole-Johnston bill and just throwing this out and creating a new risk-based standard that will require the 280 chemicals that were put on the list in November 1994 to suddenly be available for review again, and for many of them to jump over a whole series of tougher hurdles as to whether or not they will ever get back on the list. So I hope my colleagues will take a hard, hard look at the reality of some of the provisions in this bill. I repeat, I would like to vote for a regulatory reform bill. I know the Senator from Ohio would. We appreciate the opportunity to be able to legislate and make changes that could improve this bill so we can do so. I am prepared to accept a cost-benefit evaluation and risk assessment standard in the analysis. I think that is fair. I think it is important. But we should not make it a standard which somehow precludes the capacity of the rulemakers to make some rules, and of people to continue programs of good common sense. Another example of what this bill is, it essentially eliminates the Delaney clause. The Delaney clause protects our citizens from being exposed to carcinogens in their food. The Dole-Johnston bill does not come in and suggest a responsible fix. It does not come in and suggest we can improve this in a thoughtful way that protects the health of children while reforming the Food, Drug and Cosmetic Act. This bill legislates changes preferred by one set of special interests and I hope the U.S. Senate does not embrace this provision. So, my hope is that we are going to keep our eye on the ball here, as we listen to people denigrate--easily denigrate--regulations. I hope that our approach to reform will be done with accuracy and reflect the reality of the benefits that accrue to Americans because many of these efforts will be used to guarantee standards by which products will be sold and Americans will live. I yield the floor.

Mr. KERRY. Mr. President, I thank the distinguished Chair. Mr. President, I have listened with some interest, as I am sure other people have, while the distinguished Senator from Utah has come to the floor with a list of egregious regulatory excesses, which I think he has called his top 10 list of silly regulations. And as one listens to those silly regulations, it is pretty easy to sit back and say, hey, that is pretty silly. Why is my Government doing silly things like that? It builds up resentment to regulations, and people say, wow, that is what this bill is all about. This bill will get rid of those silly regulations. Now, the Senator from North Dakota is going to be here at some point in time, and he is going to discuss a few of the silly designations from the Senator from Utah. I would like to take on a couple, if I can, and I would like to try to substitute reality for the quick hit, easy perception. I begin that, Mr. President, by saying, as a number of us have said on this side of the aisle for a number of days, there are excesses in our regulatory process. And nobody in this Chamber denies that, and nobody in this Chamber is going to deny the need to have regulatory reform. There are stupid things that happen, and when we find them, we ought to get rid of them. But what disturbs me, Mr. President, is to see an opportunity taken to label as sort of the top 10 silly items, items which when you look at them are not actually so silly after all or do not even fit or belong in that kind of category. Now, I would like to go through a couple of those and set the record straight and factually look at some of the supposedly silly regulations, and perhaps my colleague from Utah would be willing to look at the real language and acknowledge that there may be a rationale there that has not been properly characterized in his top 10 silly list. I am reading from the Congressional Record of June 28 when the Senator from Utah talked about the Head Start Program. He pointed to a church in Harlem, the Abyssinian Baptist Church, that struggled ``for 4 years to get approval for a Head Start program in a newly renovated building. Most of those 4 long years was spent arguing with Federal bureaucrats concerning the dimensions of the rooms.'' Mr. President, that is the Senator's rhetoric. Here is the reality: According to the New York City Agency for Child Development, there are not any Federal ordinances or regulations that apply to that building or to the rooms. None. Zero. In fact, it was local regulations--not Federal regulations--with which they were dealing and which were responsible for the delays. According to Richard Gonzalez, the Assistant Deputy Commissioner responsible for running Head Start, ``The Federal Government did nothing to hold up this project.'' Yes, it took 4 years for the program to become operational, but the 4 years were not spent arguing about the dimensions of the rooms, they were spent finding sponsorship for the program; obtaining a lease agreement between the church, the owner of the property, and the city of New York; and completing the license process with the various city agencies. So we have rhetoric and we have reality. This is the reality, Mr. President. I submit that that greatly changes the perspective of the way in which we ought to approach this debate. On the same day, June 28, the Senator from Utah cited the use of Braille on drive-through cash machines. Now, that is pretty silly on its face, is it not? It is nice to come to the floor of the Senate and make fun of the notion that Braille is required on anything to [[Page S 9763]] do with a drive-through machine because, obviously, blind people are not driving. That is basically the thrust of the comments that were made on the floor. It sounds absurd and the rhetoric can make it pretty laughable, and people can get angry at regulations. But what is the reality, Mr. President? The reality is that the banking industry itself recognized the need for these machines for passengers and for walk-up users. There are plenty of places in America where you have just one machine at a facility and you have a walk-up/ drive-in teller, and people walk to the teller machine, just as they drive up to it. In point of fact, because many blind people or visually impaired people do not want to be required to give up their privacy, they may be riding in a car and the car drives them to the automatic teller machine [ATM]. But they do not want to give their personal identification number to a stranger, so they get out of the car and they walk up and they use the ATM machine. What happened here on the floor is almost insulting to those who are visually impaired, who have won the right which the banking industry has suggested is necessary. In discussing the regulation, this is what the American Banking Association said: 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. The American Foundation for the Blind brought to my attention that despite what appears to be an obvious conclusion, blind or visually impaired people do use drive-up ATM machines. They may take a cab to the bank. They may ask a friend or a relative to drive them. But bank transactions are very personal and they clearly want to contain their pin number to themselves, so they say many times drive-up ATM machines are the only ones available after regular banking hours. Now, the regulation that applies to this, Mr. President, only requires one machine of several available to have the Braille. If that machine is indoors, that satisfies the requirement. So there is no requirement that a machine that is drive-up must have the Braille. The only requirement is that one machine be available to the visually impaired. Is that a silly requirement? Not quite as silly as the Senator seemed to want to make it out to be. Another example of rhetoric versus reality: The Senator from Utah said that Government regulations on the sale of cabbage total almost 30,000 words. Mr. President, I ask unanimous consent that the Government regulations on cabbage be printed in the Record.

Mr. KERRY

Mr. KERRY. Let me say to my friend, you see, it seems to me that the Senator from Mississippi is now doing exactly the kind of characterization that I just issued a press alert on, suggesting that we are tearing apart a bill that is, in fact, the nirvana of regulatory reform. But what the Senator neglects to tell the American people is that by a vote of 15-0, the committee that has spent years working on this issue sent a bill to the floor. It is the Roth-Glenn bill. It is the heart of what we will vote on as an alternative. And I say again to my friend, 15-0. If that bill were on the floor today, without the Dole-Johnston substitute in the mix, as the only ingredient of legislation, I submit to my friend we would pass it 100-0. Maybe 98-2. But now that we have got the new mix, a contentiousness has entered the entire equation. I might add, there are two other committees that have jurisdiction here. The Environment Committee, of which the Senator from Rhode Island is the chairman, was bypassed altogether. Now, that may be because he is noted for his reasonableness on these issues. And then the Judiciary Committee, which also has jurisdiction, was not allowed to legislate one amendment. Not one amendment. So what happened is that the three committees with jurisdiction were taken completely out, and this bill was essentially written by the majority leader, by a cabal of people involving a lot of interests that have been specially served here. Take out the Delaney clause. Take out the toxic release. Have a special fix here and a special fix there.

Mr. KERRY. That is your right.

Mr. KERRY. So if amendments have to be filed by 1 p.m. tomorrow, those of us who have to work tonight in preparation for a meeting have to disperse our staff in order to ensure all Democratic amendments can be brought together by 1 p.m. tomorrow. That is an example, I say respectfully, of how this breaches the process. There is, in effect, a chilling effect on our capacity to pull ourselves together for a meeting and negotiate. And second, there is a terribly unfair burden put on all of our colleagues who will arrive tomorrow morning to learn that they have about 2 or 3 hours to put in an amendment.

Mr. KERRY. Would the Senator like me to----

Mr. KERRY. I will not take long.

Mr. KERRY. Mr. President, I respect the ability of the Senator from Mississippi to be able to put a shiny note on almost anything. But I must say that the question still remains whether or not it is appropriate to file it today, Wednesday, or whether or not you could not preserve the option to file it on Friday, and it would ripen by Monday, or file it Monday and ripen by next Wednesday. The question is, what signal is being sent. If you look back at the Record, this bill was laid down in the Chamber--excuse me, it was printed in the Record on a Wednesday night. Thursday it appeared prior to our departure for the July 4 recess. It was then agreed upon that there would only be debate and no amendments offered. That was a suggestion, I might add, of the majority leader. So we departed on a Friday with everybody agreeing there was only debate. We came back only this Monday, the mid part of the day. We had an agreement to have some votes in the afternoon. We then went into a recess the next morning for conferences. We recessed in the evening without any additional votes. Now we are back here on Wednesday. So here we have one of the single most important pieces of legislation that will come before us--I think everybody agrees with that--and here we are with a cloture motion at the desk on Wednesday evening with only five Democratic amendments voted on. Now, the Senator from Mississippi has suggested, well, this happened a great deal previously. I would say to the Senator, respectfully, that by June of the first session in the prior terms this never happened. This happened in the second session. And it did begin to happen with some frequency because certain people here adopted a conscious policy of filibustering everything. And everybody knows that our efforts in the final months of the last session of the last term were literally governed by the policy of gridlock that was a calculated strategy to let nothing pass. Thereupon, Senator Mitchell, who was truly the monument to patience and goodwill, came to the floor again and again and again without pressing the notion of late nights and cloture and order in our lives. So I think that really it does not send a good signal in the context of where we traveled in last few days. Second, we entered into some negotiations in those days when the floor was open for debate. I thought we were making some progress. At the last meeting Senator Nickles, who headed up the task force on the other side of the aisle, stood up and said, ``Well, we have gone just about as far as we can go today. I'll let you know when we can have the next meeting.'' Well, it is now Wednesday, 9:30 at night. We still have not been notified about another meeting. There has been no serious effort to reengage in negotiations. So this filing has to be placed also in the context of that fact, that if this was serious, we might indeed have met. Now, I want to have what I call a press alert here tonight because the reason this cloture motion has been filed is basically to empower a certain political strategy to take place, which is to try to put those who want to legislate a good piece of legislation on the defensive with the notion that they are somehow delaying the Holy Grail of regulatory reform. And so we now have hanging over our heads the specter of disappearing for a weekend with a cloture vote where we have to assert our right to legislate under the cloud of being accused of standing in the way of regulatory reform. That is the game here. And my hope is that as more and more of these amendments come to the floor and Americans are given a chance to measure what is happening here with an attempt to take away the right to know and supplant it with the right to hide and the right to pollute, or to take away the ability of regulators to issue reasonable rules, or even to approach a standard of reasonableness here, I think people are going to understand. Now, I would say for myself, I am running this year. It does not matter to me if we have to vote cloture five, six, seven, eight times to preserve the right to protect those things that 25 years have made a difference in people's lives. And you know, I think that we ought to get about the business of trying to figure out how we are going to lift stupid rules and legitimately irrelevant, excessive agency regulations, but at the same time not take something like the Delaney clause that keeps carcinogens out of the food that our kids eat and our fellow citizens eat, and somehow just throw it out, which is what this bill does. So I do not think most Americans have yet come to realize the full measure of what is at stake in this legislation. But this Senator certainly is happy to debate it for some period of time to help them do so. Mr. LEVIN addressed the Chair.

Mr. KERRY. Let me say to my friend from Colorado that when he got into that recitation about the coffee breaks and the amount of time and pages, I all of a sudden feared he might have been one of those people who had written some of these regulations. But knowing that he did not and would not, I just want to say, we agree with everything he just said, and the bill that Senator Glenn and Senator Roth brought out of committee 15-0 would have, indeed, addressed almost everything that the Senator just said. The problem is, if you take, for instance, the threshold argument the Senator just made, the threshold was set in 1975 by President Ford. One hundred million dollars is worth $35 million today, and if you lowered it to $50 million, you are talking about reality of a $17 million threshold. As my friend knows, there is not a lawyer in America who cannot conjure up a threshold impact of $17 million in real value, $50 million, or otherwise. We lifted that to $100 million for a major rule, but we still have a $10 million threshold in here for Superfund. And under the Nunn amendment that was adopted, we brought in this extraordinary panoply of small business at a whole new threshold. So you have literally a 100- to 400-percent increase in EPA and other agency requirements here just to review the new rules you brought under it. I know the Senator is not going to add to the budget to provide personnel to do that. So you have an enormous gridlock problem. I will just say to my friend from Mississippi, by having filed this cloture motion, I believe, if I am correct in the parliamentary procedure, amendments now have to be filed by 1 p.m. tomorrow; is that correct?

Mr. KERRY

Mr. KERRY. Will the majority leader yield for a moment? Madam President, I ask the majority leader. We have a list, a series of sort of major items, and then some less major, that have been presented some time ago. We did, in the day before we departed for the recess, have a negotiating process that at least had just begun. That broke up with the notion that at some point we might hear from people whether we could get back and see if we could make more progress. It is my sense the Senator from Utah has, in good faith, offered to sit down. The Senator from Louisiana has. The difficulty is both of them have also had a requirement to be on the floor for a significant period of time, so it is very hard to try to accomplish what I think might be possible, which is to have progress in the negotiating effort. I do not know if that means, therefore, it might make sense to have a prolonged quorum call in the morning, or maybe come in a little later and give us time to get together and see if we could find some commonality. But we are still waiting for a response with [[Page S 9783]] some specificity to those things that have been submitted.

Mr. KERRY. Well, Senator----

Mr. KERRY. It was my understanding, in conversations a few moments ago with the Senator from Louisiana, that he thought we had the capacity to accommodate a particular concern on the decisional criteria which we had some colloquy on yesterday on the floor and some further conversation on today.

Mr. KERRY. But we still do not actually have language or an agreement to do so, so we are in this sort of nebulous area. I think it would be helpful if we could find the time to work through those critical areas. At that point, a lot of our people who would like to vote for this bill if we can fix these things will have the ability to decide whether we are close to that, whether that is a reality or not. I think it would help determine what the course will be on this legislation.

Mr. KERRY

Mr. KERRY. The Senator agrees.

Mr. KERRY. But there is no discretion.

Mr. KERRY. But the----