Congressional Record, Volume 140 Issue 61 (Tuesday, May 17, 1994)

[Congressional Record Volume 140, Number 61 (Tuesday, May 17, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

SAFE DRINKING WATER ACT AMENDMENTS OF 1994

The Senate continued with the consideration of the bill.
Mr. BAUCUS addressed the Chair.
The PRESIDING OFFICER. The Senator from Montana.
Mr. BAUCUS. Madam President, what is the pending order of business?

amendment no. 1711

The PRESIDING OFFICER. The question now occurs on amendment No. 1711,
offered by the Senator from Arizona.
Mr. McCAIN. Madam President, I rise in support of the amendment
offered by Senator DeConcini to help protect public health and the
environment along our Nation's border with Mexico. Specifically, the
amendment would authorize the Environmental Protection Agency to make
grants for high priority wastewater treatment facilities along the
border which addresses international pollution problems.
My colleagues are well aware of the problems facing border
communities in the Southwest. In Arizona, we have had several problems
with transboundary water pollution which has resulted in the
contamination of drinking water wells and surface water. Public health
emergencies have been declared in Nogales because of raw sewage flowing
into the streams from Mexico. Mr. President, during these episodes
children have been found playing in stream beds contaminated by this
waste. This must stop. Period.
As Senator DeConcini pointed out, studies are underway to determine
the cause of a cancer cluster afflicting Nogales. Preliminary studies
have shown that between 1986 and 1992, 290 of the 600 people that died
in that area had some form of cancer. This is more than double the
national cancer rate.
Recently, a petroleum spill in the sewer system forced the city to
declare a state of emergency and evacuate residents because of concern
that fumes from the spill may explode. Many of my colleagues may
remember the incident in Guadalajara, Mexico where such a spill
resulted in a horrific explosion.
I have said time and time again the United States and Mexico have a
responsibility to protect public health and the environment of the
border region. We have an obligation to provide the proper
infrastructure to meet that goal.
Last year, the President requested and Congress provided $500 million
to support the construction of much needed water infrastructure for
hardship communities including areas along the United States-Mexico
border. While I was pleased that Congress recognized its responsibility
to help these communities, my optimism was tempered by the fact that no
authorization was given to the Environmental Protection Agency to
actually spend this money.
The conferees intended that expenditure of this money would be
authorized at some later point. Well, that was October of last year and
since then no action has been taken. As a result, we are faced with a
persistent and growing threat to public health and the environment from
untreated sewage in areas along the border. Senator DeConcini's
amendment is needed because it is clear that this problem demands our
immediate attention.

The amendment is quite simple. It would authorize the Environmental
Protection Agency to transfer funds to the International Boundary and
Water Commission [IBWC] and other appropriate entities to resolve
international wastewater problems. EPA would only use these funds
either directly or thorough the IBWC to resolve high priority
international problems for hardship communities. The IBWC is currently
authorized by law to deal with this very problem. The President's
fiscal year 1994 budget request identified several of these water
projects which rate a high priority.
One of these communities is in Nogales, AZ. Nogales is located on the
border directly across from her sister city Nogales, Sonora, Mexico.
The International Boundary and Water Commission owns and operates a
wastewater treatment facility on the border which treats surface water
flowing from Mexico into the United States.
As a result of growth primarily on the Mexican side of the border,
the plant is operating at nearly 80 percent of its capacity. Under
Arizona law, waste treatment facilities are required to begin planning
for expansion once they reach 70 percent of their capacity.
Adding to the problems of the treatment plant in Nogales is a new
program in Mexico to expand sewer collection systems. Mexican officials
are rightfully moving to ensure the proper disposal of this waste.
Unfortunately, the consequence of this is added pressure on the
existing wastewater treatment facility. Upgrading the facility is
crucial.
According to officials at the International Boundary Water
Commission, waste from Mexico and the city of Nogales will exceed the
plant's capacity within 3 to 5 years. If the money to upgrade the
facility was available today and everything went according to schedule,
it would take 4 years to complete the upgrade. Clearly, there is a
compelling need to authorize the use of these funds immediately to meet
our obligations to citizens in Nogales and throughout the border
region.
Madam President, I realize that some of my colleagues may argue that
it would be more appropriate to address this issue when the Senate
takes up the Clean Water Act reauthorization.
Unfortunately, the time for waiting has expired, the citizens of
Nogales and other border communities have been waiting and waiting and
waiting. They don't know nor do they care much about the niceties and
formalities of Congressional procedure. They do know and care about
their children who become sick when wells are contaminated with sewage.
They do know and care about growth and prosperity of their city which
will be summarily halted if the plant is not upgraded. They do know and
care about their rivers and streams which become inundated with sewage
when the current sewage system fails. They need and deserve our help.
No member in this chamber can tell the people of Nogales with
absolute certainty that the Clean Water Act will be brought to the
Senate floor and will pass this year. Despite the best efforts of the
chairman and ranking member, we have no guarantee that the Clean Water
Act will pass this year. We simply cannot tell these people to continue
to wait and to hope for the best.
My colleagues may recall that it was 3 years ago when the Arizona
delegation first began to seek funding to upgrade this wastewater
treatment facility.
Each year, the citizens of Nogales have been denied. Two years ago a
conference committee stripped provisions that would have allowed the
plant upgrade--a victim of one member who opposed the North American
Free-Trade Agreement.
During debate on NAFTA there was much discussion about the obligation
of both Mexico and the United States to protect public health and the
environment along the border. Many people including members of this
body were quite strident in their criticism of Mexico's performance in
that regard. Mexico is making progress. The failure to do our part in
the cause would be grossly negligent and hypocritical.
In good conscience, we cannot tell the people of Nogales and the
other border communities that face similar international problems to
wait any more. I ask unanimous consent to have printed in the Record
several media accounts of the sewage treatment problems and needs that
this amendment would address. I urge my colleagues to adopt this
amendment.
There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the Nogales International, Mar. 4, 1994]

Plant Expansion Still Needed

(By Jennifer Markley)

Plans to develop the recently-expanded Nogales
International Wastewater Treatment Plant, now operating at
75-percent capacity, remain under consideration, said
officials this week.
``The need is still the same,'' said Lino Vega, supervisor
of the plant.
Rene Valenzuela, public affairs officer for International
Boundary and Water Commission (IBWC), said that development
plans for the treatment facility await the outcome of
preliminary plans under way for collecting renegade flows
from Mexico to the treatment plant.
The contract for the preliminary plans has not been
assigned to an architectural engineering firm yet, but may be
ready next week, said Valenzuela.
At issue, said Vega, is an old line that is ``coming to
capacity,'' in transporting wastewater flow from Mexico to
the Nogales plant.
Valenzuela said that once results of the study are
available, such as the location and size of a new line, the
IBWC can coordinate with the Environmental Protection Agency
(EPA) for the design and cost of the project before going to
Congress for funding.
Money is available for the study of a new line, but ``we're
subject to Congress'' for funding, said Valenzuela.
Paul Valdez, an environmental engineer with the EPA's U.S.-
Mexican border team, said there is no specific amount of
money set aside for the Nogales plant.
The EPA, however, recently drafted legislation authorizing
use of funds in border areas, Valdez said.
But, the funds must be applied for, he added.
The IBWC can apply for funding from ``a big pot of $500
million set aside for hardship communities'' across the
country by the EPA, and from the Border Environmental
Cooperation Committee, he said.
Valenzuela said he is not aware of any applications
submitted by the IBWC.
Currently, the Nogales plant treats about 13 million
gallons per day (mgd), but can expand to 17.2 mgd, said Vega.
``Nonetheless, once you get to 75 percent, you're supposed
to notify EPA because shortly thereafter you're going to come
to capacity,'' he said.
Federal law requires treatment-facility officials to notify
the EPA with expansion plans when a sewage plant operates at
75-percent capacity, which the Nogales plant did in 1992,
said Vega.
There are predictions, he said, that within the next year
the plant could reach its capacity of 17.2 mgd, if not
because of an increased amount of sewage, then because of
rainwater.
``Every time it rains we go up to 15, almost 17, (and ) up
to 24 (mgd) the other day,'' he said.
No matter what the amount of wastewater to rainwater,
however, the EPA takes one reading from the meter, said Vega.
He said eight additional aerators are needed to mix water
and suspend solids at 17.2 mgd.
Though a meeting has not been set to discuss plans for the
wastewater facility, four options are under consideration,
said Vega.
A plant could be built in Mexico for the southern flow of
wastewater, Nogales could pay Mexico to take over and run its
plant, the IBWC could buy and run the Nogales plant, or
Mexico could buy the Nogales plant and money from that
purchase could go towards building a separate plant for the
city, said Vega.
He said he thinks the option of a buy-out for the
construction of a new plant for the city will be decided
upon.
``We need to for sure get ready for that point'' when
capacity is reached, said Vega.
____

[From the Nogales International, April 29, 1994]

United States Should Buy Wastewater Plant; City Can Build Another

(By Kathy Vandervoet)

There is a possible answer to the dilemma of wastewater
treatment.
``We have proposed what we call the `All America solution'
'' said Lino Vega, superintendent of the Nogales
International Wastewater Treatment Plant.
Nogales would sell its 45 percent share in the existing
wastewater treatment plant to the International Boundary and
Water Commission.
That agency is already the copermit holder with the city to
operate the facility.
In return, the IBWC would build a separate wastewater
treatment plant exclusively for Nogales, Arizona.
Funding would have to be approved by Congress.
The new international trunkline would feed sewage from
Mexico into the existing wastewater treatment plant, and the
existing trunkline would feed the city's new treatment plant,
Vega said.
Most Nogales residents are hooked up to the sewer line, but
some residential areas are not, such as Beatus Estates,
northwest of downtown.
Residents there should be connected to the sewer, health
officials have said, because individual septic systems are
failing at many homes.
Meadow Hills would also benefit from being hooked to the
sewer main.
As well, a vacant area north of Meadow Hills, where two
public schools are to be built, is also expected to be
developed with homes, and hundreds of acres should be
connected to sewer lines.
____

[From the Nogales International, April 29, 1994]

Opinion--Intolerable Sewage Problems

Most people would prefer to forget about sewage treatment
and disposal, but the economic growth of Nogales and better
lives for all residents hinges on immediate action.
Nogales must have a second wastewater treatment plant, or
see that the current facility is greatly expanded, says Lino
Vega, superintendent of the facility.
Sewage from Mexico flows downhill from Nogales, Sonora. For
our own health and safety from communicable diseases, the
wastes are treated in Nogales, Ariz. But the local plant is
at more than 75 percent of capacity. It took 12 years for the
last expansion and Nogales doesn't have a safety net of
another 12 years.
Meanwhile, Vega says, ``the capacity we own and we are
paying for is being usurped by the rapid increase in sewage
flow from Mexico.''
Funding for this international problem must be approved by
Congress and the U.S. Environmental Protection Agency has to
lobby senators and representatives so that Nogales is not
ignored.
The promised economic growth that NAFTA will bring won't
make a wrinkle in Nogales if all construction is halted due
to inadequate sewage facilities.
Vega has told the EPA that ``this is an intolerable
situation.'' Now let's see if Administrator Carol Browner
responds.
____

[From the Nogales International]

Sewage Plant Must Expand so Economic Growth Can Continue

(By Kathy Vandervoet)

If Nogales doesn't get help soon from the U.S.
Environmental Protection Agency (EPA) for the city's
wastewater treatment plant new construction could come to a
screeching halt.
Severe pollution of the Santa Cruz River is also a
possibility. Lino Vega, superintendent of the Nogales
International Wastewater Treatment Plant, prepared a detailed
explanation for the EPA's deputy director, Robert Sussman,
when he visited here last week.
``The capacity we own and are paying for is being usurped
by the rapid increase in sewage flow from Mexico,'' Vega
said.
The treatment plant is receiving more than 75 percent of
its total capacity, and planning for expansion or a second
sewage collection location is overdue.
The existing main sewer line from Nogales, Sonora, which
runs underground in Nogales, Arizona is currently at
capacity, Vega said.
Vega explained that there are two reasons for the sewage
treatment emergency:
Rapid population growth in Nogales, Sonora, estimated at
four percent a year.
Improvements to the water and sewer systems in Nogales,
Sonora.
Vega said that Mexico is pursing very aggressively
construction of new sewer lines and the increase of water
supplies for Nogales, Sonora.
``It is our understanding that when a wastewater treatment
plant reaches 100 percent of capacity, EPA will probably not
allow new sewage connections in our city.
``That would be an enormous economic hardship on our city--
even though our people are paying for excess capacity in this
treatment plant for our own growth,'' Vega said.
Current water use in Nogales, Sonora, is around 50 gallons
per person per day, as compared to 250 gallons per person per
day in Nogales, Arizona, Vega said.
``As the population of Nogales, Sonora, increases, their
water supplies improve and sewer collection systems coverage
improves, we are going to get more wastewater to treat.
``We experienced a substantial increase in sewage flows
when the first Los Alisos (Mexico) project went on line,''
Vega said.
Even so, there is an estimated one to two million gallons
per day of raw sewage flowing down the Nogales Wash. If that
sewage is put into the wastewater treatment plant, as is
currently proposed, the city quickly gets closer to the
plant's capacity, he said.
``It took 12 years for the expansion of the treatment
plant'' that was completed 18 months ago. We cannot wait 12
years to deal with the problems we face,'' Vega said.
The EPA's Sussman said during a public forum on April 21
that his agency is pressing for funds.
The EPA has requested $5 million from Congress this year
and $13 million in 1995 to ease Nogales sewage problems.
Vega said, ``Our problem is very simple and very
important--if sewage flows from Mexico exceed the capacity of
the existing wastewater treatment plant, we are going to have
an increase in raw sewage flowing down the Nogales Wash and
into the Santa Cruz River, polluting the groundwater supplies
for the entire Santa Cruz River Valley.
This is an intolerable situation for us,'' Vega concluded.
____

[From the Citizen]

Tests Confirm Gas in Sewage

(By Anne T. Denogean)

Preliminary test results confirm that ``dangerously high
levels of petroleum-based products, primarily diesel and
gasoline,'' were found Thursday at the Nogales Sewage
Treatment Plant.
In making that announcement last night, Nogales Fire Chief
Jose de la Ossa added; ``It is anticipated that results from
samples drawn from the sewer line at the Sonora border will
reveal much higher concentrations of these products.''
Final tests results are expected Tuesday, the fire chief
said. Preliminary results have been forwarded to appropriate
authorities, including the International Boundary Water
Commission, he said.
The hazardous material that leaked into a Nogales-area
sewer line Thursday forced evacuation of more than 4,000
residents on both sides of the border. They were allowed to
return to their homes and businesses Thursday night after
subsequent test readings were normal.
Continual monitoring of the sewer lines since Thursday
night has found no unusual levels of petroleum-based products
of any kind, de la Ossa said.
A 7\1/2\-mile-long, 300-foot-wide strip that covered
territory on both sides of the border had been evacuated
after workers from the sewage plant that treats waste water
flowing north from Nogales, Son., detected very high levels
of a gas, believed to be a petroleum by-product.
The source of the contamination remains a mystery.
U.S. Sen. John McCain, R-Ariz., yesterday called on Mexican
President Carlos Salinas de Gortari ``to investigate the
source of repeated pollution of the border area.''
``The Mexican government is still investigating with all
the different agencies on the Mexican side to determine what
the source of it is,'' said Carlos Pena, Nogales project
manager for the U.S. section of the International Boundary
and Water Commission.
Nogales Police Chief Luis Alday said he had spoken to his
counterpart in Nogales, Son., and was told that Mexican
authorities have some leads.
Jerry Slusser, an emergency response specialist with the
Arizona Department of Environmental Quality, said the Arizona
Attorney General's Environmental Crime Unit is investigating
as well.
Pena said Thursday's problem did not result in any
contaminated water being released into the Santa Cruz River.
The main sewer line leads to the sewage treatment plant,
which then discharges clean effluent into the river.
If the contamination is a petroleum by-product, it will
evaporate or dissipate before the water leaves the plant,
Pena said.

Mr. BAUCUS. Madam President, I move to table the amendment and I ask
for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There appears to
be a sufficient second.
The yeas and nays were ordered.

vote on amendment no. 1711

The PRESIDING OFFICER. The question now occurs on agreeing to the
motion to table amendment numbered 1711. The yeas and nays have been
ordered. The clerk will call the roll.
The legislative clerk called the roll.
Mr. FORD. I announce that the Senator from Illinois [Ms. Moseley-
Braun] is necessarily absent.
I further announce that the Senator from Alabama [Mr. Shelby] is
absent because of illness.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
who desire to vote?
The result was announced--yeas 75, nays 23, as follows:

[Rollcall Vote No. 114 Leg.]

YEAS--75

Akaka
Baucus
Bennett
Biden
Bond
Breaux
Brown
Bumpers
Burns
Byrd
Chafee
Coats
Cochran
Cohen
Conrad
Coverdell
Craig
Danforth
Daschle
Dole
Dorgan
Durenberger
Faircloth
Feingold
Ford
Glenn
Gorton
Graham
Grassley
Gregg
Hatch
Hatfield
Helms
Hollings
Inouye
Jeffords
Kassebaum
Kempthorne
Kennedy
Kerry
Kohl
Leahy
Levin
Lieberman
Lott
Lugar
Mack
Mathews
McConnell
Metzenbaum
Mikulski
Mitchell
Moynihan
Murkowski
Murray
Nickles
Nunn
Packwood
Pell
Pressler
Pryor
Robb
Rockefeller
Roth
Sarbanes
Sasser
Simpson
Smith
Specter
Stevens
Thurmond
Wallop
Warner
Wellstone
Wofford

NAYS--23

Bingaman
Boren
Boxer
Bradley
Bryan
Campbell
D'Amato
DeConcini
Dodd
Domenici
Exon
Feinstein
Gramm
Harkin
Heflin
Hutchison
Johnston
Kerrey
Lautenberg
McCain
Reid
Riegle
Simon

NOT VOTING--2

Moseley-Braun
Shelby

So the motion to lay on the table the amendment (No. 1711) was agreed
to.
Mr. BAUCUS. Mr. President, I move to reconsider the vote by which the
motion was agreed to.
Mr. MITCHELL. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Privilege of the Floor

Mr. BAUCUS. Madam President, on behalf of Senator Wellstone, I ask
unanimous consent that David Corvette, a fellow on the staff, be
permitted the privilege of the floor during the pendency of S. 2019 and
for all rollcall votes, and I make the same request with respect to
Jack Fowle, on Senator Moynihan's staff.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. COHEN addressed the Chair.
The PRESIDING OFFICER. The Senator from Maine.
Mr. COHEN. Madam President, I ask unanimous consent that I be allowed
to proceed as in morning business for 1 minute.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. COHEN. I thank the Chair.
(The remarks of Mr. Cohen pertaining to the introduction of
legislation are located in today's Record under ``Statements on
Introduced Bills and Joint Resolutions.'')
Mr. DeCONCINI. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. BAUCUS. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BAUCUS. Madam President, we are starting to process amendments.
That is good. We are starting to get a little bit of roll here. We
voted on the amendment of the Senator from Arizona. I understand that
other Senators are now ready to come to the floor and offer amendments.
I, again, urge Senators to come to the floor. There is time now
within which to consider amendments. I remind Senators under the
agreement, we are on the safe drinking water bill today and also
tomorrow. Tomorrow there will be a joint meeting of Congress. The
Senate will recess temporarily for that joint meeting in order to hear
the address of the Prime Minister of India. There may be other times
tomorrow during which the Senate will be unable to conduct business,
which is to say Senators should not assume they will easily be able to
bring up their amendments and have them disposed of tomorrow.
All amendments must be brought up and offered prior to the close of
business tomorrow under the agreement. Staff is over here. If Senators
want to send their staff over to work out amendments that, too, will be
very appropriate. If the Senators themselves want to come over and
debate their amendments, I strongly urge them to do so now.
Madam President, I now see the Senator from New Hampshire on the
floor. It is my hope that he has an amendment.
Mr. GREGG. I do.
Mr. BAUCUS. I yield the floor.
Mr. GREGG addressed the Chair.
The PRESIDING OFFICER. The Senator from New Hampshire.

Amendment No. 1712

(Purpose: To prohibit the assessment or collection of penalties against
a community if the noncompliance of the community with the Safe
Drinking Water Act results from an unfunded Federal mandate)

Mr. GREGG. Madam President, I send an amendment to the desk. Frankly,
I have not had an opportunity to send this to the chairman, so I also
ask that a copy be given to the chairman.
The PRESIDING OFFICER. The clerk will report.
The bill clerk read as follows:

The Senator from New Hampshire [Mr. Gregg] proposes an
amendment numbered 1712.

Mr. GREGG. Madam President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

On page 74, between lines 5 and 6, insert the following new
paragraph:
``(8) Waiver of penalties that result from unfunded federal
mandates.--
``(A) Definitions.--As used in this paragraph:
``(i) Funds.--The term `funds' means amounts provided by
the Federal Government to a political subdivision, including
amounts that must be repaid by the subdivision.
(ii) Unfunded federal mandate.--The term ``unfunded Federal
mandate' means a requirement that a political subdivision
undertake a specific activity, or provide a service, in
accordance with this title during a period, to the extent
that the Federal Government does not provide, directly or
indirectly, funds that are necessary to undertake the
activity or provide the service during the period.
(B) Waiver of penalties.--The Administrator may not
commence a penalty assessment proceeding under this
subsection against a political subdivision and any pending
penalty or penalty assessment or collection proceeding under
this subsection against a political subdivision shall be
waived, if the noncompliance of the subdivision that is the
subject of the penalty or proceeding results from an unfunded
Federal mandate.

Mr. GREGG. Madam President, last week, the Senate approved the
conference report accompanying the budget resolution. That resolution
contained a sense-of-the-Congress provision on unfunded mandates.
I had offered this provision when the Budget Committee was marking up
the resolution on the budget. All 21 members of the committee voted for
it and, of course, the budget resolution, adopted by this House and the
other body has been approved. The provisions of that section of the
budget resolution which we just adopted state:

The Federal Government should not shift the costs of
administering Federal programs to the States and local
governments.

I really do not think anything could be clearer as a statement of
intent. It is a very appropriate statement of intent because, as we
have seen all too often, it has become the nature of this Government--
the Federal Government--to pass laws which are well-intentioned and
well-meaning but to pass the cost of those laws on to the local
governments and the States.
The practical effect of that is that we, as a Congress, can take
credit for the well-intentioned purpose of the law, but we do not
suffer the pain of having to raise the revenue to pay for it. Rather,
that burden falls on the local communities and the States.
Another practical effect of this is that the local communities and
the States find that their tax base is skewed by the activities of the
Federal Government in a manner that makes it impossible for the local
communities and the States to spend their locally raised revenues on
the priorities which they consider to be most important. Rather, they
must spend their local revenues on the priorities that are set forth by
the Federal Government.
For example, a community may wish to hire more police officers or
spend more on training its teachers or paying its teachers. They may
wish to spend more on fire, or may wish to spend more on its local park
system. But because of the pressure put on the local communities to
comply with a variety of Federal laws which are unfunded but which
mandate them to undertake action, it finds that a large percentage of
its tax base has to be allocated for the purposes of paying the Federal
activity, which has been directed on it, rather than the local
decisions which may be their first priority.
And so this language was put in the budget resolution because I think
most Senators understand this, most House Members understand this,
frustration that is growing in our country amongst local and State
representatives and leaders with the Federal Government telling the
local communities to do something but not being willing to pay for it.
The bill that is before us represents a legitimate and genuine effort
by the chairman of the committee and the ranking Republican on the
committee to try to address this problem. They have been, I believe,
very sensitive to the fact that unfunded mandates are the scourge of
the towns and city governments throughout this country. But as hard as
they have tried, unfortunately, there remains in this bill a fair
amount--a considerable amount in fact --of unfunded mandate language
and implications.
The EPA has estimated that the capital expenditures needed to meet
the requirements of this safe drinking water bill are approximately
$8.6 billion. That is a huge amount of money. That is the capital side.
You must couple with that expenditure number the fact that there is a
significant cost in compliance that is put on the local communities as
a result of this bill.
My language is really quite simple. I do not go the full distance and
say if the Federal Government does not pay for it, the towns and cities
do not have to do it, although there are some strong and effective
pieces of legislation that are cosponsored by a large number of
Senators in this body--in fact, a majority of the Senators in this body
have cosponsored language to other bills --which would accomplish that
and which, if it were in law today, would directly impact on this bill.
I do not even go so far as to say that as to this bill those funds
which are allocated to the loan fund, which really are still an
unfunded mandate because the towns must pay back the loans, will be
counted as unfunded mandate obligations. They should be. They are. But
I have not taken that step either.
Rather, I have tried to scale back the approach so that it would be
more acceptable to the majority of the Members of this body, who I
recognize are interested in passing an effective Safe Drinking Water
Act, and this bill before us is an excellent act for that purpose.
The manner in which I have done this is to essentially say if a town
does not comply with the Safe Drinking Water Act because it is unable
to get funding from the Federal Government to comply with the Safe
Drinking Water Act, whether it comes as a grant or whether it comes as
a loan, then the town or city will not be subject to fines from the EPA
for noncompliance.
The purpose of this really is to prevent the Federal Government from
imposing what amounts to a double whammy on States and local
governments by first hitting a State and local government with an
unfunded mandate and then saying we are not only not going to pay for
the mandate, but when you do not comply with the mandate we are going
to fine you for not complying with the mandate. It really is an
incredible double whammy, and unfortunately a large number of towns and
cities get caught in it.
So what this amendment does is put the fines on hold. It does not
even abrogate the fines. It puts them on hold as long as there is no
money to pay for the capital expenditures or the other expenditures
which are incurred to comply with the mandate.
It allows to be counted as a source of revenue for the purposes of
paying for those funds the loan fund which, as I already mentioned,
really is an unfunded mandate in and of itself, which we will for the
purposes of this argument accept, and therefore go forward as if, when
the loan fund is drawn down, the city or town will have been deemed to
have received a Federal payment which would then mean that its failure
to comply would institute the fines, or if the funds were available to
it, its failure to comply would institute the fines.
It is really a quite simple approach and says no funds, no fines. I
think it is the only fair way to go. I do not understand how, in
fairness, we can say to communities first that you must do something;
second, that we are not going to pay for it; and third, if you do not
do it and do not pay for it, we are going to fine you for not having
done it. There seems to be a contradiction in that approach which
undermines obviously a fairness in the matter of relationships between
different levels of Government.
I hope that the committee would accept this amendment. Obviously, if
the committee is not willing to accept it, I would ask that we have a
vote and if there no comments on this, I would ask for the yeas and
nays.
The PRESIDING OFFICER (Mr. Akaka). Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
Mr. GREGG. I yield back the remainder of my time.
The PRESIDING OFFICER. The Senator from New Hampshire yields back the
remainder of his time.
Is there further debate?
Mr. BAUCUS addressed the Chair.
The PRESIDING OFFICER. The Senator from Montana [Mr. Baucus].
Mr. BAUCUS. Mr. President, this is the first opportunity that the
committee has had to look at this amendment. It was just offered a few
minutes ago. It is the first opportunity the committee has had to look
at its language, to assess its effect in order to better understand the
actual implications and manifestations of the amendment. It was my
understanding that the Senator from New Hampshire was going to offer an
amendment in this area dealing with so-called unfunded mandates, asking
utilities to indicate on their bill the amount that is attributable to
various provisions in the Safe Drinking Water Act.
This is not that amendment. This is an entirely different amendment.
So I must comment on it now as just a matter of first impression
without having the opportunity to think it through.
Mr. President, the basic question is unfunded mandates. What is the
concern? The concern on the part of many people is that the U.S.
Government asks various States and cities and localities to undertake
certain action in the name of protecting the public health and safety,
and the concern is that although the U.S. Government passes laws
working with States to try to find the right balance and the right ways
to encourage good health and safety standards, the U.S. Government does
not provide full funding to the States and local communities
commensurate with or equal to the requirements in the legislation.
That is the basic concern. I might make several points, Mr.
President. First of all, with respect to our environmental statutes, it
is important to remember that our environmental statutes are really
quite new. Our environmental statutes are basically about 20 years old.
The Safe Drinking Water Act, the Clean Water Act, the Clean Air Act,
Endangered Species Act, the National Environmental Policy Act, these
are all major environmental pieces of legislation, most of which were
passed in the President Nixon era to address some very legitimate
environmental concerns, and one of them is safe drinking water.
Up until 1974, safe drinking water regulation was left to States,
cities, communities, localities, and so forth. That is because
traditionally in our country health and safety is the province of the
States, and not the Federal Government. But the U.S. Congress acted in
1974 and passed essentially the first national Safe Drinking Water Act.
It had a different name at the time. Why did Congress do so? Congress
did so because of the very deep concern that States, cities, and towns
were not doing the job. They were not providing for good, healthy, safe
drinking water in their communities. There were many instances of
illnesses, of deaths, and just a lot of water systems in this country
were not providing good, healthy, safe water.
I think if there is anything this country is proud of, if there is
any given that Americans take for granted and assume it is something
they can count on, it is when they turn on the tap in their home that
the water is going to be safe, they can drink it, or when they turn on
their tap and make a cup of coffee it is going to be safe. They can
drink it. It is clean, healthy, safe water.
I might say that up until somewhat recently when Americans traveled
overseas, traveled abroad, the basic question was, ``Can you drink the
water? Is the water potable? Can you drink it? Is it healthy? Is it
safe?'' We Americans assumed that American water was healthy and safe.
We assumed somewhat correctly, with some arrogance perhaps, that water
in other countries was not healthy, and was not safe. They could not
drink it. You could not drink the water.
Times are changing. In other countries, we are finding that the water
is more healthy, is safe. You can drink the water in more countries
than say 10, 20, 30 years ago.
Now there is a slight concern in our country that some of our water
is becoming maybe not quite as healthy, not quite as safe as we assumed
that it was.
For example, with the cryptosporidium outbreak in Milwaukee, there
were headlines in many of the newspapers, ``Milwaukee water is not safe
to drink.'' There was a moratorium on drinking the Milwaukee water for
some time.
In Washington, DC, another example: You could not drink the water in
our Nation's Capital because it was not healthy, was not safe to drink.
We finally got that straightened out after several days. Now visitors
that come to our Nation's Capital can turn on the tap and drink the
water without much concern or worry.
Another point: This is a complex Nation of ours. We have a complex
form of Government. We are not one sole Nation. We are not 50 nations.
We are 1 Nation and 50 States. It is therefore incumbent upon us to try
to find the right balance between Federal regulation and State and
local regulation.
We in this bill are doing so. That is, we are delegating much more
back to the States--much, much more back to the States than was the
case in the past.
But again I might go back and reconstruct just briefly. We in the
Congress in 1974 did pass the national act because the States were not
doing the job. The States and the localities and the cities were not
doing the job to protect their water. So Congress stepped in in 1974
with the first, albeit mild, national legislation to help assure
Americans that not only their own communities but when they travel
across the country as tourists, when they go to visit friends and
relatives in other parts of the country, that not only is the water in
their community safe but it is also safe in the community they visit.
Americans are in transit. They move about a lot. They change jobs. We
hear in the health care debate about job lock. ``Gee. I cannot get a
different job because my company provides good health insurance. The
other job I am looking at, that employer does not provide good health
insurance. So I am reluctant to leave, change jobs.'' It is called job
lock.
We certainly do not want a clean water lock where Americans feel,
``Gee, I do not know if I can move to that State. I do not know if I
can move to that community because their water might not be as good and
as safe as it is in ours.''
Think of the children. If there is anything we want our children to
have is an assurance that the water they drink is healthy and safe.
So unfunded mandates is the issue. This legislation dramatically
reduces the burdens on communities, and particularly on small
communities, small systems which feel the greatest brunt of the burden.
I mentioned that in 1974 the Congress passed the first Safe Drinking
Water Act. We delegated certain responsibilities to the EPA. What
happened? By 1986, EPA had not done the job. EPA had written standards
I think for only one or two additional contaminants. I have forgotten
the exact number, but not very many contaminants. So Congress in 1986
passed revisions to the Safe Drinking Water Act.
The Republicans were in control of the Senate. The Republican
President, Ronald Reagan, signed the bill. It passed the Senate almost
unanimously, and was signed without much fanfare, increasing
requirements and standards across the country to better assure
Americans that the water is safe to drink.
Here we are in 1994. What happened? What happened pretty simply is we
went too far in 1986. We enacted standards that are too burdensome,
particularly on small systems; that is, systems in communities with
fewer than 3,300 people, because according to the laws of the economy
of scale, the very large cities could much more easily allocate and
distribute the monitoring costs and the capital costs associated with
installing technology, filtering the water, and so forth than systems
with too few hookups.
In fact, in small systems it is sometimes 10 to 14 times more costly
per household to meet the same standards as a big city. That is one of
the reasons we are hearing this concern about unfunded mandates; that
is, the mandate particularly on small systems. The large systems really
do not care very much about the mandates. They can do it. It is not
very costly to them. It is the small systems that are having a devil of
a time meeting the current 1986 requirements.
The bill before us very dramatically addresses that concern. It does
so in many ways. First, we reduce the monitoring costs. There is a very
significant reduction. In current law, all systems must monitor for
each of the contaminants at least once a year over 3 years.
Technically, it is one-quarter out of I think 3 or 4 years regardless
of whether the monitoring--that is, the testing--detects the
contaminant. That is in the law today.
That is big systems, small systems, in year one, you monitor. You
test for various contaminants to see whether the contaminants are
present in your water. If there is no detection, currently you still
have to continue to monitor. Monitoring is very expensive, again
particularly for small systems.
What are we providing? We are saying, OK. If you monitor--that is, if
you test--and you find in the small system that there is no
contaminant, you do not have to monitor again for that contaminant for
3 more years. We have reduced the monitoring costs.
I might add that monitoring is by far the biggest cost facing small
systems. That is the biggest problem facing small systems--monitoring.
We also modify monitoring in another way. What is it? It is the State
monitoring program. There is a big, big reduction in monitoring costs;
massive reduction in monitoring costs.
Three States have taken advantage of the State waiver program:
Wisconsin, Michigan, and I have forgotten the third State. In Michigan,
the monitoring costs are now reduced to about 10, 12 percent of what
they otherwise might be. There is a dramatic reduction in monitoring
costs. Under the Michigan--as well as the Wisconsin--State monitoring
program, those States figure out what parts of the State should we
monitor because contaminants tend to be present? What other parts of
our States should we waive monitoring because these contaminants tend
not to be present? It depends upon where certain companies are located,
it depends upon the groundwater systems, it depends upon a lot of
factors. Again, it is a dramatic reduction. I do not know whether New
Hampshire is taking advantage of the State monitoring system. But if
any State were to take advantage of the monitoring program, they would
find steep reductions in their monitoring costs.

Another provision is that we make it easier for States to apply for
and be given authority under the State monitoring program. Today there
is a State grant program, and we allocate certain dollars among States
to help them meet their concerns by allowing these dollars to be
available to help implement State monitoring programs. We have heard
that some States would say, gee, we would like to apply to the EPA, but
it is onerous, and it is hard to go through the hoops and the redtape.
We heard that concern and we are making the changes necessary in this
bill so that States--all States--can apply with much more facility to
significantly reduce their monitoring costs.
What about the technology costs? Again, I repeat: By far, the most
onerous burden that the ``Safe Drinking Water Act'' today puts on small
systems is the monitoring costs. Without sacrificing health and safety,
we are saying to small systems in particular, you do not have to
monitor quite as often, again, if we do not find a contaminant. Beyond
that, the States of New Hampshire, Rhode Island, California, or
Montana, any State, can apply and work out a State program in some
localities and monitor for contaminants, depending on the nature of the
business and the industries and ground water vulnerability.
What about the few small systems that find out that they've tested
positive? There is a contaminant in the water. What do they do? We have
taken care of that by saying that small systems, after looking at other
alternatives, such as consolidation, joint administrative costs, and so
forth, you can apply for what is called ``small system best
availability technology''--off-the-shelf technology. I must say that as
technology advances, the costs of off-the-shelf small system best
available technology are getting a lot lower, dramatically lower. So we
are significantly, dramatically reforming the mandates, saying there is
much less of a mandate than there has been in the past.
Second, we are funding the reform mandate. This legislation provides
for a whole new program, a State revolving loan fund for States to
address their drinking water system needs. The authorization is $600
million in the first year, already provided for and appropriated; $600
million has already been appropriated in this Congress for this year.
We also provide for a billion-dollar authorization for next year and
each of the succeeding years, until we get up to $6 or $7 billion. It
is the safe drinking water State revolving loan fund, under which all
States--New Hampshire, for example--could decide that here we have a
small community having a devil of a time meeting the mandates.
Remember, we have dramatically reformed them. They are much less than
they were. I guess that is a 70 percent reduction in costs for
monitoring, and a 20 to 50 percent reduction at least for technology
for smaller systems, which are bearing the brunt of this. Also, there
are big changes for the large systems, too. New Hampshire can decide,
OK, this small system cannot quite make ends meet, so we are going to
give them a very low interest loan to help them install their
technology.
We in Congress are funding the mandate. They might come back and say:
What about the systems that cannot afford it? We provide in this
legislation--I think it is up to 30 percent of the State revolving loan
fund may be provided to systems by States for interest writeoff and
principal writeoff--in effect, a grant to those small communities. We
are providing the dollars. They are there.
Another provision in this bill is in a whole new area related to the
Clean Water Act. What is that? Essentially, it is the legislation that
helps ensure that our rivers, lakes, and streams are cleaner. The Clean
Water Act also has a State revolving loan fund for wastewater treatment
plants for communities to make sure they have the wherewithal to build
their sewage systems and their wastewater treatment systems. It is a
big program. I think it is close to about $2 billion, roughly,
annually. We are providing in this legislation that States can transfer
dollars out of the Clean Water Act State revolving loan fund over to
the safe drinking water loan fund and vice versa, which is a lot more
flexibility for the States, to have a new source of money.
I will sum up by saying that we are undertaking three very important
constructive measures here that hit the nail on the head. That is, they
direct this unfunded mandate concern, reforming the mandates, and say,
OK, we are reducing the redtape and the burdens and particularly where
it is most onerous--that is, particularly in the small systems--
reforming the mandates.
No. 2, we are funding the remaining mandates with a new program,
State revolving loan fund.
Three, we are giving much more flexibility to the States, much more.
Each State is different. The flexibility is essentially that States can
set up their own monitoring program, at a very reduced cost. And, in
addition, we are saying a Governor can switch dollars from the State
drinking water revolving loan fund to the clean water revolving loan
fund, and vice versa. There is more flexibility there. Those are some
of the provisions contained in this legislation to address the very
legitimate concern that the Senator has and that people across the
country have.
Our committee has met incessantly, constantly, with groups across the
country to try to find a way to make this drinking water program work
better. What we are doing here today is revolutionary. We are not
standing on the floor with a whole new environmental statute. We are
not enacting a whole new statute to rush in and address the problem. We
are not doing that. We are taking an existing statute and reforming it,
making it work better. We are addressing people's concerns. I think
when Senators take a long, good hard look at the actual provisions of
this bill, they will find that it makes sense.
There is a coalition of drinking water systems and of organizations
across the country that had some earlier concerns with this bill. We
have worked with that coalition, and because of a series of changes,
they no longer have concerns with this bill. At least they do not
oppose this bill. I think that it is safe to say that they now support
this bill. I have just been assured that they will support the bill.
Let us get on to the amendment. It basically provides, as I
understand it--and it was just handed to me--no penalties may be
assessed by a Federal agency--essentially the EPA--and no action may
proceed with respect to any system violating a provision of the Clean
Water Act. I guess that would essentially be the U.S. attorney's
office, at least in Federal court, that would file or commence any
proceeding under the Clean Water Act. None of that could ever occur if
there was a determination that there were not sufficient Federal
dollars going to that--it is unclear here. I guess that it is the
political subdivision fully providing for payment for that
requirement--in this case a Federal requirement.
Various questions come to my mind. No. 1: How do we know whether or
not there is a so-called unfunded Federal mandate? Does that mean 100
percent of the costs have to be paid? Does it mean that 80 percent are
paid? Does it mean 90 percent are paid? What happens when there is a
contract which provides for full payment; yet, we are only halfway
through the terms of the contract? What year are we in? Because
whenever a new system is built, it is not built in the first year. It
takes several years to build it.
And sometimes, with a small percentage of the States, revolving loan
funds are allocated to pay for the first 2 percent requirements in the
first year. The second year it might be 20 percent completed
construction; it might take several years to complete the construction.
So what do we mean by unfunded mandates? I can see all kinds of
litigation to respond from this thing. I do not think it is the
Senator's intent to stop dollars from being allocated to these systems.
But then there is a more fundamental point that comes to my mind.
What if a State is not providing for its people? And what if Uncle Sam
says you must? And what if it turns out, in trying to work out how we
pay for it, that the city is out of compliance because it is thumbing
its nose at its citizens, or the Congress, or the State? Then,
according to this, the Federal Government could not commence a penalty
assessment proceeding, it could not commence any kind of a proceeding
to bring that system into compliance.
I would think, Mr. President, that the people who live in our cities
and towns across our country, their first concern is that the water is
safe. That is going to be their first concern. Is it healthy, safe
water to drink? I bet that is their first concern.
Second, they are going to be concerned about who is paying for it,
and how it is paid for. I would guess they would not want the Congress,
the States, the county commissioners, the water commissioners, to be in
this big hassle which would result in no enforcement; no Federal
enforcement, certainly. I would think they would want to make sure,
first of all, that the water is safe and then, secondarily, to figure
out some other way to address these questions.
Again, I want to sum up by saying, I do not have a total account as
to whether these so-called mandates are fully funded or not. I would
not be surprised, in some instances, if they are overfunded. Some of
these communities get an awful lot of dollars under State revolving
loan fund allocations that may be above and beyond their needs. I do
not know that.
But this bill is so generous in reducing the mandates and so generous
in providing dollars, it has occurred to this Senator several times
that some of these communities and States around the country are
getting a pretty good deal.
We have certainly addressed the question of unfunded mandates with
respect to the Safe Drinking Water Act. And that is all this amendment
is tailored to, as I understand it, and that is the Safe Drinking Water
Act.
I yield the floor.
Mr. GREGG addressed the Chair.
The PRESIDING OFFICER (Mrs. Boxer). The Senator from New Hampshire.
Mr. GREGG. Madam President, I certainly appreciate the chairman's
lengthy and very substantive explanation of the process the committee
went through in developing the Safe Drinking Water Act. And, as I said
in my opening statement, in commenting on my amendment, I thought it
had done a fine job attempting to address this issue and that it had
recognized unfunded mandates remain a serious concern, and that it had,
as the chairman has outlined, undertaken a number of initiatives to try
to address this.
But, by the terms of its own report language, we have here an
unfunded mandate of a minimum of $3 billion. That is the difference
between what CBO estimates capital expenditure costs to be and what the
revolving fund will be. That does not account for the significant
dollars which the chairman also reflected on relative to compliance and
relative to monitoring, which are very, very expensive.
Even if the local communities are able to apply for the technical
assistance grants, even if they are able to apply for the direct grants
out of the revolving fund, there is still the compliance issue which is
extremely expensive.
So there is no question but there is a significant cost put on local
communities to comply with this bill. And I do congratulate the
committee for attempting to address those costs and attempting, in a
very logical way, to do that; and in a way that has not traditionally
been done in many of the environmental bills that has come before this
Congress throughout the 1970's and 1980's. So I hope this is a new path
we will be seeking, because it is a more reasonable path of dealing
with different levels of the Federal Government, especially local
communities.
But that does not resolve the problem completely, because there will
be instances where the Federal Government will be demanding of a local
community that it take action, but then it will say, but we have no
funds available from the loan fund--which, remember, is also an
unfunded mandate, but which issue I am setting aside for a moment--but
there will be no funds available from the loan fund because the loan
fund will have been exhausted for that year and it may not be available
until next year or the following year or maybe it will not be available
at all. But, in any event, there is no money at the point when they are
told to do something to help them do it.
I am not saying the town or the city can escape the law and say,
well, therefore, we do not have to do this. That is not part of this
amendment.
What I am saying is that, at that point, there cannot be fines
assessed against the towns and the cities for not complying. Rather,
they are going to have to sit down at the table and work out an
agreement. That is the whole point of this amendment; where the EPA,
and the State, and the local communities that are being impacted will
figure out where they are going to get the money to do this with.
That is a no funds, no fine approach. It is not an approach that says
if there are no funds you do not have to do it. It is not that type of
approach. Although, as I have mentioned, there are a number of bills in
this body right now which have a majority of sponsorship of the
membership of this body which say exactly that and where they say this
bill could not go forward in a number of instances because of that
situation. But that is not the tenor of this amendment.
What this amendment tries to do is to avoid the double whammy. First,
you do not give them the funds, then you hit them with a fine. All we
are saying, if you do not give them the funds, you cannot hit them with
a fine. You can hit them with a fine later on if they do not get the
funds available. But, first, you have to have the funds there so there
is a little fairness in this process.
Now, the chairman raised two points in his commentary on this. He
said, what is an unfunded mandate? I think it is essentially defined by
the body that is assessing the fine. If the EPA comes in and says,
``This must be done,'' that is a mandate. And if it says, ``This must
be done and if you do not do it we are going to fine you,'' then that
is clearly the mandate that is being talked about. And if there is a
fund out there to pay for it, then the issue of it being unfunded is no
longer in question.
If the State has the funds, the EPA can point to the funds and the
town has to either go and apply for that money and get that money to do
what it is supposed to do, what it has been appointed to by the EPA, or
designed by the State environmental services agency, or if it does not
do it, it gets fined because the money is there.
But if the money is not there, not in the revolving fund, and the EPA
says, ``You must do this,'' then it cannot assess a fine at that point.
It can the next year, if the money comes back into the revolving fund.
If the State replenishes that revolving fund, then the EPA can say,
``Well, we told you to do that last year and you did not do that. That
does not relieve you of the responsibility. This year the money is
there, so we expect you to do it.'' Then they can assess the fine.
So I really do not see that as being a legitimate point of
contention. First, the unfunded mandate is defined by the terms of a
filing, which the EPA would undertake and, secondly, clearly if the
money is there, fines have to occur or compliance has to occur. So it
ends up as even fewer lawsuits. In fact, it energizes the settlement of
the matter, rather than the opposite occur as to what I think has been
represented by the chairman as a possible problem with this amendment.
This amendment is just logic. It is fair play and common sense. All
it says is, ``Hey, listen. You can tell a city to do something''--and
you have a right to tell them to do something; we are not denying that
right to this bill; to clean up their water, make sure it is clean--
``but when you tell them to do it, if you cannot fund it, you cannot
fine them for not doing it.''
And since the chairman made, at great length, a statement that said
basically what we are going to do is come in and fund here, we are
going to come in with enough money over the time period to do it, this
amendment should not even be needed to be debated. It should be
accepted on the grounds that, hey, it is never going to be needed
because at some point the process will be funded and, therefore, the
amendment will not have an effect, if the chairman's philosophy of the
way this is going to work works out, and I hope it does.
But there is always the occurrence that may come about that maybe the
Appropriations Committee is a little short of money one year and does
not fully fund the authorization; maybe for some reason the revolving
fund in the State has drawn down a lot faster than it was expected and
it cannot fulfill all the obligations that year and has to wait until
next year. In those instances, I do not think it is fair to be
assessing fines against towns which are not complying. It does not mean
they do not have to comply at some point. It just means they cannot be
fined until we can help them out by giving them the dollars to support
them. So the amendment is simple. I am not sure when the chairman
wishes to go forward with a vote on this, if he wants to go forward now
or if he wants to roll the vote over to a time certain with other
votes. I do not know what his plans are but I would be amenable to
whatever he wishes to do in that regard.

The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. CHAFEE. Madam President, I commend the Senator from New Hampshire
for his interest in these unfunded Federal mandates. He has spent a lot
of time on this and is deeply concerned. He was a Governor, as perhaps
he has pointed out, so he has seen the effects of the Federal
Government levying requirements on the States without fully funding
them.
However, it is nothing unusual. I must say, although the Clean Water
Act and waste treatment requirements under that are not 100 percent
fully funded, as we all know--the State puts up some, the Federal
Government puts up usually about 75 percent--but in the end the
communities and the State have to obey, otherwise our waters would
never be cleaned up.
As I understand the amendment here--correct me if I am wrong--first,
it deals solely with the Safe Drinking Water Act. Second, as I
understand it, it says that there can be no requirements by the Federal
Government levying on the communities requirements to keep their water
clean unless the Federal Government has fully funded those
requirements.
As I understand, it is not quite that way. It says there can be no
fines levied for failure to comply. Am I correct in that?
Mr. GREGG. The Senator from Rhode Island is correct. It is the issue
of when the fines can be levied that is raised by this amendment.
Mr. CHAFEE. In other words, if the fines cannot be levied, there is
really no real requirement that the community obey? I think that
follows; otherwise, what is the incentive for them to obey? If they do
not obey there is no penalty?
Mr. GREGG. If the Senator from Rhode Island will yield, first, the
issue is, if you are going to order the towns to comply, you should
support the towns with funds to pay for that. If you do not have the
ability to support the towns with funds in that year, then the fine
will not apply that year. The next year you can make the funds
available and then you can fine the towns to force them to comply.
Mr. CHAFEE. What the Senator from New Hampshire is saying, in effect,
is that the Federal Government has no ability to levy a safe drinking
water requirement on a community unless the Federal Government is
prepared to pay 100 percent of the funds required to comply with that
demand by the Federal Government, with those regulations?
Mr. GREGG. If the Senator will yield, I am saying, under this act, to
the extent the Federal Government directs the communities to undertake
an action, if the Federal Government is not supporting that action with
funds, then the Federal Government can continue the directive but it
cannot insist on collecting fines--which would be the double whammy
effect of, first, you tell them to spend the money, and then, if you do
not have any money to support the event, you tell them you are going to
fine them--until you do support them.
Mr. CHAFEE. I am not sure in the amendment of the Senator that it
says they cannot afford to do so. It is just if they do not do so, as I
understand the amendment. I can be corrected.
Mr. GREGG. If the Senator will yield further, there is no condition
of affluence testing, who can and who cannot comply with the Federal
law. If the Federal Government is going to enforce the law, the theory
is the Federal Government should pay for the cost.
Mr. CHAFEE. It seems to me, Madam President, that what we are doing
here, if this amendment should be adopted--and after all, if it applies
here, I see no reason why not the next step, when we have a Clean Water
Act, why the same requirements should not be levied on that. If the
Federal Government is not prepared to pay 100 percent of the cost of
waste treatment facilities to clean up lakes and rivers and streams,
then the local communities do not have to do anything.
But that is a step ahead. I am going to stick right to this treatment
of safe drinking water. It seems to me the Federal Government, with the
tremendous mobility that exists within our populations and with the
tremendous amount of travel that takes place where somebody from Ohio
is going to California or somebody from Nevada is going to New
Hampshire or somebody from Montana comes to Rhode Island, that the
Federal Government has a certain right to ensure, to the extent it can,
to the citizens of our Nation, that the water they drink is clean. If
the Federal Government is going to step in and be helpful, that is
grand--as we do in this legislation. We start, under this bill, with
$600 million of revolving funds to help the local communities produce
clean water. This is the first time we have had a revolving fund in
that area, so this is a big step forward.
But to say the Federal Government has no power to ensure that
traveling citizens of this Nation are going to be safe where they go in
the water they drink unless the Federal Government pays 100 percent of
the cost I think is a very unusual step. I do not think that is a fair
requirement to levy in connection with the safety and the health and
well-being of our citizens.
Mr. GREGG. If the Senator from Rhode Island will yield, I think it
would be unusual for someone to travel from Montana to New Hampshire
and find that the water in New Hampshire was any less of a quality than
it was in Montana. I believe the scenario that has been laid out is at
best hypothetical and a bit exaggerated. The fact is, the people who
live in the community where the water is delivered are the ones who
have the most significant interest in maintaining the quality of that
water.
I guess the Senator is going forward with the assumption the only
people who are sensitive to having water that is clean and potable are
people who live in Washington or work in Washington. I know the Senator
is not of that mind. I know he recognizes fully the people of Rhode
Island and New Hampshire and the towns of Barrington, RI, the town of
Nashua, NH, are as sensitive to having good water as the people are in
any other part of this country.
So there is clearly an innate and inherent incentive for the local
community to maintain its water supply at a high level of quality. And
traditionally in this country that has occurred.
That is not to argue against the concept of a Federal law in the
area. No, I think a Federal law in the area makes considerable sense,
and I think the law this committee has produced is an excellent piece
of legislation. But when the Federal Government decides to step onto
the turf of the local community, which has the primary interest of
delivering water to its citizenry, and tell the local community exactly
what it should be doing relative to the delivery of water to that
community, something it has been doing for probably 200 or 300 years,
at least in the New England area, without this law--prior to 1974 when
it was first initiated, and amended in 1986, I guess--then I think the
Federal Government, once it decides to enter into the issue of
directing the local community as to how they are going to manage their
water supply, has a very definite obligation to pay for the additional
costs that it is putting onto the local community.
I am not even demanding, or suggesting, that occur. I am not even
requesting that occur in this amendment. If I wanted to take that
approach, I would have brought forward one of the many bills of this
body that do exactly that, that say the mandates should not go forward
and there be no need to comply unless they are fully funded. Nor am I
even pointing out that the funding in this bill is really an unfunded
mandate in and of itself. There is no substantive--it is a loan, it is
not a direct grant, and therefore the towns have to pay it back and
thus the funding is an unfunded mandate.
But what I am saying and what I think makes eminent sense is, if you
are going to demand the communities do this, then you cannot say they
are going to be fined when you do not fund it.
It is a very simple approach. It does not say they do not have to
comply. It says they do have to comply when the revolving funds have
the moneys that are available. And in practice, of course, as the
Senator from Rhode Island certainly knows, that is exactly what is
going to happen.
As these revolving funds develop the cash flow to support the
compliance activity across States, you are going to have compliance
occurring. All I am saying is let us not get the cart ahead of the
horse by requiring fines before there is money to pay for the
compliance, because you know compliance is going to occur because you
have done a good job of trying to address the issue of funding.
I think if you look at the practical aspects of how this works versus
the theoretical and hypothetical aspects, it becomes a very legitimate
proposal.
Mr. CHAFEE. Madam President, I think we are embarking on an unusual
path for the Federal Government to require compliance: When it is
granting a substantial sum of money but not 100 percent that it cannot
make any requirement. Maybe the thing should be reversed. Maybe we
ought to have a provision in here that no money goes to any State that
will not comply. Maybe that is the answer: Any State that does not want
to comply will not get a nickel. The money will go to those States who
want to participate, and by wanting to participate, I mean they are
willing to put up their share, whatever the share might be.
Mr. GREGG. If the Senator will yield on that point, of course, that
is an option, and if the committee wishes to pursue that--as you know,
on public works projects dealing with Federal highways, that is exactly
the approach this Congress has taken in the area of helmet laws and in
the area of speed limits.
So, yes, that is clearly a public policy approach that can be taken.
The committee has decided to go this other way. As long as the
committee decided to go the other route, then let us not get the cart
ahead of the horse and let us not have a situation where you do not
fund and then you fine.
Mr. BAUCUS addressed the Chair.
The PRESIDING OFFICER. The Senator from Montana.
Mr. BAUCUS. Madam President, Senators may be watching this debate and
assuming that this is another amendment offered by the Senator from New
Hampshire under the unfunded mandates rubric. They may think this
debate is on that amendment. I want to make it clear to Senators
listening to this debate that this debate is not on that amendment.
This debate is on a wholly separate, new, amendment that the Senator
from New Hampshire brought to the floor and we are looking at for the
first time.
This amendment is a beguiling, seductive amendment. It sounds pretty
simple. Basically, it says if there are no funds, no fines. I might
say, Madam President, that this is not that amendment at all. This is
an amendment which basically has abolished Federal enforcement of the
Safe Drinking Water Act. That is what this amendment does. This
amendment runs the great risk, and that is not an overstatement, of
essentially abolishing Federal enforcement under the Federal Safe
Drinking Water Act. That is what it does.
Why do I say so? I say so because any system, any community that does
not want to comply with the act could very cleverly hire a lawyer to
find some argument where the requirements that it must face, A, are all
Federal and, B, are not totally, fully funded today, at this moment.
They may prevail, and that means no Federal enforcement.
I do not think that is what Americans want. They do want Federal
enforcement. I think Americans want to be assured that the water they
are drinking is safe. They want Federal enforcement, but they want
proper Federal enforcement.
I have a whole list of questions I could ask the Senator from New
Hampshire to see how his amendment would take effect. For example, is
he asking for a full 100 percent Federal?
My first question goes to the State revolving loan fund. There is a
20-percent State match to 80 percent Federal funds required. Is the
Senator from New Hampshire saying that the U.S. Congress must not
provide only 80 percent in the State revolving funds, but must provide
a full 100 percent? Is the Senator saying the State's 20 percent
requirement can be withdrawn, that the States do not have to contribute
their 20 percent to the State revolving loan fund? Is that what the
Senator is suggesting?
Mr. GREGG. As I understand the act, it requires States put in 20
percent; is that correct?
Mr. BAUCUS. The Senator is correct. Under the State revolving loan
fund that exists in the Clean Water Act and under the new State
revolving loan fund under the Safe Drinking Water Act--that is the bill
before us--it provides for a match: 80 percent Federal, 20 percent
State.
Mr. GREGG. Then there would be compliance if the Federal Government
had 80 percent of the funds.
Mr. BAUCUS. So the Senator is saying that if the U.S. Congress
appropriates 80 percent of the funds under the State revolving loan
fund, and if that State revolving loan fund pays for the system's
requirements, the State could not claim unfunded mandates as it affects
any enforcement action against that community? Is that what the Senator
is saying?
Mr. GREGG. I am not sure I understood the whole hypothetical.
Essentially, I believe the concept of what the Senator from Montana is
saying is correct. This is not an attempt to undermine the thrust of
this bill. I really do think it does a disservice to the amendment to
aggrandize it to such a level, as the Senator from Montana has. This is
simply an attempt to make it clear that when the fining process starts
to occur, then the Federal Government will have done our job.
Mr. BAUCUS. I understand the Senator, but I am trying to understand
how the Senator's amendment works. Again, this is a first impression. I
had not seen the amendment until 20 minutes, half an hour ago when the
Senator brought this amendment to the floor. No one has had a chance to
look at it. I am reading it to get a sense of how it works.
For example, if I understand the Senator's answer to my question,
that under the State revolving loan fund contemplated in the bill,
where Uncle Sam provides 80 percent and States 20 percent, if that
fund's loans to the community fully accommodates that community's
requirements, is the Federal mandate fully funded?
Mr. GREGG. Yes, it would be.
Mr. BAUCUS. I appreciate that. So the answer to the question is it is
fully funded under the present State revolving loan fund where Uncle
Sam provides 80 percent and the States 20 percent for the system.
Mr. GREGG. If that is the language of the bill. The mandate is
defined by the bill in a sense of what the Federal Government must do.
If the Federal Government's share was 50 percent, it was fully funded.
I would take as a hypothetical another area where there is a mandate,
91-142, which is the special ed student situation, there you have a
suggestion in the law that the Federal Government go to 40 percent of
the cost of the special education systems of our schools. If the
Federal Government went that 40 percent, they would be fully funded.
Mr. BAUCUS. The Senator anticipated my next question.
Mr. GREGG. We can adjust that number.
Mr. BAUCUS. If the Congress provided, in its wisdom, for 1 percent
and the States had to match 99 percent----
Mr. GREGG. The purpose of this amendment was not to address the
underlying issue, which is the core question, which is when is the
Federal Government being irresponsible in its unfunded mandate
activity.
Mr. BAUCUS. So it is the Senator's position that the Congress would
not be irresponsible if the Congress decided to provide 1 percent of
the revolving loan fund as opposed to 80 percent. That would not be
irresponsible?
Mr. GREGG. I feel that is very irresponsible. In fact, I considered
offering an amendment which would address the underlying question you
are raising which is the much more fundamental question of the issue of
unfunded mandates. This is not the core issue of what is and is not an
unfunded mandate. I think we are confusing it in the debates right now.
What this gets to is the fine issue. There is this other core issue,
and I hope it is going to be taken up at some point in this Congress
because I know there are a lot of bills floating around on the issue,
and some have significant sponsorship. But that is not the issue that
is being adjudicated by this amendment.
Mr. BAUCUS. Let me ask another question so we understand how it
operates. Let us say a community in New Hampshire is starting to
install a new technology to meet a standard that is provided for in the
Safe Drinking Water Act; a good standard; a standard that must be
addressed if the people are going to have safe water.
Let us further assume that this is a 5-year project. You do not just
build this new technology and install it immediately.
Now let us say it is year one and contracts have been let. As the
Senator knows, under the usual workings of the State revolving loan
fund, each year the State designates a different portion of the State
revolving loan fund, actually loans different portions to different
communities in different years.
So in year one, the system is not yet constructed. Certainly no big
mandate here. Let us say that for some reason or another the system
decides it does not want to proceed and therefore is in violation of
the law, although there is a contract and assurance that the dollars
are there in the revolving loan fund.
Is the Senator saying because the dollars have not been fully
provided, because the system is not complete yet, that----
Mr. GREGG. No. In my estimation, you would then be able to assess the
contractor.
Mr. BAUCUS. What if the community goes beyond the grace period in the
bill? The legislation before us provides certain grace periods. As long
as this system is making a good-faith effort, there is no prosecution.
What happens after that grace period?
Mr. GREGG. If funds are available and there is a contractual
obligation, it seems to me the fine is assessed.
Mr. BAUCUS. What about interest rates? Let us say the interest rate
the community must pay Uncle Sam is not providing for interest
payments. Is Uncle Sam fully funding the mandate or not?
Mr. GREGG. I would presume--and we are getting into some
hypotheticals, which I think is worth getting into, and I think the
answers so far have reflected the fact this is a legitimate amendment
that is not going to destroy the bill, but is just trying to get at the
core issue of fines versus funding.
But I think in that context you would presume that the agreement that
had been worked out which would have drawn down the revolving fund
would have interest rate language in it. I know of very few that do not
have interest rate language in them. So I presume that would be a fund
advantage.
Mr. BAUCUS. One other question. What happens when a community
decides, for whatever reason, it wants to voluntarily not accept
Federal funds. It does not want to pay the interest rate in the State
revolving loan fund, for whatever reason. It decides it does not want
to participate in the State revolving loan program? In that case, would
Federal prosecution be precluded because the mandate on this system
does not have commensurate Federal funds? It does not in this case
because the community has decided it does not want them. Would Federal
enforcement therefore be precluded?
Mr. GREGG. No, I do not believe so at all. I think this amendment
makes it fairly clear that in that instance the funds are available;
therefore----
Mr. BAUCUS. I must say that is not the language of the amendment.
Mr. GREGG. Well, I think that is the purpose and the language of the
amendment, to accomplish exactly that.
Mr. BAUCUS. No. The amendment says, ``The Administrator may not
commence a penalty assessment proceeding under,'' and so on and so
forth, ``or proceeding results from an unfunded Federal mandate.'' That
is what the language of the amendment says.
Here is another example. What happens when the State of New Hampshire
or any State applies for a waiver, a monitoring waiver program, so
that----
Mr. GREGG. Excuse me.
Mr. BAUCUS. If I may complete my question--so that the State has its
own monitoring system. This is a State monitoring system now. It is not
a Federal monitoring system. Now, let us say that under the State
monitoring system the State imposes certain requirements. Under the
Senator's amendment, would Federal prosecution be precluded if a
community does not properly monitor because the community is operating
under a State program, not under a Federal program?
Mr. GREGG. To get back to the Senator's prior question, I believe my
answer was accurate. If you look at the definition, you will see, if
the funding is available, the capacity is there to assess the fine. If
the community decides it does not want to pursue the funding for
whatever reason, that is irrelevant. The funding is available; the fine
can be pursued.
On the followup question, which is, if I understand it correctly, if
States are undertaking the compliance activity of monitoring, does the
EPA have the right to come in and pursue also a Federal action against
the community?
I would think yes, if the funds are there. And, again, it is an issue
of whether the funds are there. If the funds are there and the
community has the available funds, has had made available to it the
funds, then it seems to me a fine is clearly assessable.
I think the chairman is confusing the core issue here, which is a
very legitimate one, which the committee has, I have argued a number of
times, attempted to meet, the core issue of unfunded mandate with the
issue here of fines.
What I am saying is we should not hit these communities with a double
whammy. I do not want to keep repeating it, and maybe I should choose
some other phraseology to get it across a little better. But what I do
not want to see happening is if the town does not have the funds
available to it, then it gets fined for something it does not get funds
to do. All I am saying is as soon as the funds are available, it could
be fined. Under the bill, as I understand the structure, those funds
are going to become available over a period of time because the bill is
authorized at a level which, over a period of time, should fully--I am
not sure of ``fully,'' but should significantly reduce the costs out
there to the communities.
Mr. BAUCUS addressed the Chair.
The PRESIDING OFFICER (Mr. Wofford). The Senator from Montana.
Mr. BAUCUS. Mr. President, I do not want to prolong this too much
longer. Essentially, the Senator from New Hampshire said this bill does
not go into the difficult question of what is and what is not an
unfunded mandate. That is very true. That is clear. This bill does not
go into that point, and very precisely because it is a very complex,
difficult morass to decide.
The effect of the Senator's amendment is to give lawyers a field day
in finding one way or another, in claiming for one reason or another,
that this requirement, for this technology, in this community is not
fully funded by Uncle Sam. I can think of countless numbers of
arguments that attorneys can make.
Therefore, Mr. President, this amendment essentially renders useless,
Federal enforcement because if it is a long, complex system, there will
be endless litigation as to whether or not there is full funding of the
mandate.
I might also say, Mr. President, that we have gone a long way to find
new dollars to fund mandates. Look at the chart behind me. I do not
know if the Senator can see the chart very well. We tried to make it
big so everybody could see.
Mr. GREGG. I appreciate that. I am just getting to the age where I
need glasses.
Mr. BAUCUS. Under current law, safe drinking water funding in fiscal
years 1994 through 2000 will be $420 million. That money is going to
the States. Under this bill, if it passes, $7.3 billion will go to
States to fund the reformed mandates that the bill provides.
The basic intent of the Senator's amendment is to address the very
large issue of unfunded mandates.
Again, I say to the Senator and to anyone listening that this bill
addresses unfunded mandates; No. 1, by reforming the mandates; No. 2,
by funding the reform mandates, and, No. 3, by providing flexibility to
the States so they can adjust to local conditions quite easily.
Again, just to repeat, from 1994 through the year 2000, under current
law, States will receive about $420 million to pay for requirements
under the Safe Drinking Water Act. If this bill passes, that increases
at least fourteenfold to $7.3 billion over the same number of years. It
is a whole new start. The State revolving loan fund is all new. It will
go a long way to address these issues.
Mrs. BOXER addressed the Chair.
Mr. BAUCUS. If I might, one other point, Mr. President. It is not as
if the EPA is sending out thousands of inspectors to harass local water
system operators either. That is just not the case. There is not a
massive Federal enforcement apparatus in place. I might say that in
1992, the Environmental Protection Agency brought 269 cases under the
Clean Water Act--not this act, a different act.
In 1992, there were 269 cases. They brought 303 cases under the Clean
Air Act; different act, not this act. Under this act, it brought 18;
only 18 cases, not a massive number of cases.
In addition in 1992, the highest penalty under the Clean Water Act, a
different act, was $2.9 million. Under the Clean Air Act, the highest
penalty in 1992 was $6.7 million. What was it under the Safe Drinking
Water Act, this act? The highest was $70,000. I think the average of
that year was $38,000 for the two cases.
One other point: There are 200,000 public water systems in this
country. There are only 60 EPA drinking water inspectors. There are
200,000 systems in our country, and only 60 inspectors. It is not a
whole, big massive enforcement bureaucratic apparatus that is going
after all of these systems.
Another point that is important to remember. I do not know if the
Senator fully intends this amendment. A significant percentage of the
drinking water systems in our country are private. As I read this
amendment, it only applies to the public systems. It basically says the
administrator may not assess a penalty against a political subdivision,
et cetera. It says political subdivision. Apparently, he has exempted
privates, which is to say that a significant mumber of the water
systems in this country would be discriminated against under the
Senator's amendment because they would not have the benefit of saying,
``Gee, don't enforce against me because I am private and not public.''
Another point I think worth making is that there are a lot of, a good
number of, communities frankly that need some Federal enforcement.
There is one city that the committee is aware of that for 10 years
refused to correct violations of bacterial contaminant standards under
the Safe Drinking Water Act. Frankly, it was only when the EPA went to
court to assess a penalty did that city finally begin to take serious
steps to remedy the problems.
In some sense, what I am saying is, frankly, a lot of cities, a lot
of States, do not want to do the job themselves. It is politically
difficult. It is politically difficult for a local county attorney or
an attorney general to address violations in the State. Many States
say, ``Gee. Uncle Sam, do this for us. It is hard for us to do the
right thing here.''
If this amendment passes, it seriously jeopardizes not only the
ability of local law enforcement officials to say, ``Gee. Let the Feds
do it because I don't want to do it myself,'' but more importantly, it
very seriously undermines the whole Federal enforcement program under
the Safe Drinking Water Act, which is not massive, I might add. As the
data already provided, that is a good, strong indication that this is
not a big Federal enforcement program. It is pretty mild to say the
least. It is important in those cases where the communities are not
living up to the standards, and they should.
Mr. GREGG. Mr. President, will the Senator yield on that point?
Mr. BAUCUS. I yield to the Senator, and then I will yield the floor.
Mr. GREGG. Mr. President, the Senator raised a number of points. I do
not want to carry this into an extended period of time because I know
there are other Senators who want the floor.
First, some things need to be responded to. This whole issue of
excessive attorney fees, and a great deal of lawyer activity today is a
problem with the system. So I do not see that that is necessarily going
to be impacted negatively by delaying the fine.
Second, I would point out that the enforcement language of this does
not affect if funds are available. So the instance that the Senator
talked about, I presume there were available funds going to that city
to fund the activity that needed to be corrected. Therefore, there were
those available funds. Then compliance would have to occur and the
fines would be assessed. This is not applied to private water
companies. That was intentionally done because the issue of unfunded
mandates is a public one to a large degree, and I did not want to get
into the whole ancillary question of the private-public debate and the
profitable part of the corporations engaged in the delivery of water
and how you would end up subsidizing them through this language.
So we would be stuck with the taxpayer impact event because the issue
here is impact on the tax base and the reallocation of the tax base
through unfunded mandates.
All this amendment says again is that if it is not funded, you do not
fine. It does not undercut the basic goals of this bill I do not think.
In fact, it probably encourages the basic goals of this bill because
this bill is addressed, as the Senator so well pointed out, at trying
to fund most of the mandates. As long as they are funded, there will be
no fines.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. Thank you very much, Mr. President.
Mr. President, I rise to speak strongly against this amendment by the
Senator from New Hampshire, and really back the comments made by the
chairman, the Senator from Montana, and the ranking member, the Senator
from Rhode Island, Senator Chafee.
I have to say that I have been around the House of Representatives
and the Senate now for 12 years, and I have never seen a committee
chairman and a ranking member work so well together, bend over
backwards to accommodate Senators' concerns. As a matter of fact, in
many cases I kept saying you are bending over a little too much.
But the fact is that when the two of them stand up here and put their
credibility on the line and say that this is essentially a gutting
amendment, I hope that my colleagues listening to this debate from
their offices will take that to heart. There should be an overwhelming
vote against this particular amendment.
I want to explain why. I want to speak today not only as a U.S.
Senator, which I am very proud to be getting elected and being from the
largest State in the Union, a State that has 31 million people, but
also as a former county supervisor where I was very proud to be a
locally-elected official representing a supervisorial district in a
very beautiful suburban area, and one who always said that the local
people should have a very strong voice in whatever it is we are doing.
At the same time, I always believed, and I believe it even more
today, that the Federal Government has an obligation to protect the
health and safety of all the people of this country. As Senator Chafee
has said, and as Senator Baucus has said, when people go from one State
to another, they ought to know that if they pick up a glass of water
like this one, which I find myself doing quite often here, that it is
safe to drink the water.
I would like to bring us back to the reality of why we are here. And
rather than get into a big argument about terms of art and language of
the amendment, and the interpretation of the Senator from New Hampshire
of how it would work, bring us back to the core reason we have this
bill before us.
Mr. President, every year 900,000 Americans get sick from tap water.
In one city we had 104 people die. If that is not enough for us to
support a decent and enforceable law, I do not know what else is. There
is a minimum that our people should expect from us if we deserve to be
here, that we are willing to stand up and be counted and ensure that
the drinking water is safe. I would have to say that this bill is not
doing that with a heavy hand. You can see that there is a whole new
attitude on this Senate floor in relation to this bill. And there is
absolutely an understanding that we have to be certain that local
government and State government is not so weighed down with mandates
that are not funded that they simply throw up their hands, and say,
``We cannot do it anymore.''
I have a great sympathy again for local government. But I have no
sympathy--and let me state very, very clearly--for those in office who
would refuse to ensure the people that their drinking water is
safe, because if there is any job we have as elected officials, whether
local, State, or Federal, it is to protect the health of our people.
That is what it is about.

Let me give you an example. Under this amendment--and the Senator
from Montana has posed a number of questions, and I am just going to
make a comment. I have read this amendment. Let us say there is a
county board of supervisors or a city council that runs a water system,
or they could be a water board, and they have decided they do not think
lead is dangerous. Now people come before them, and they have the
National Academy of Sciences report, they have physicians, but they
decide that in their philosophy, this is not a problem. So they decide
they are not going to regulate the amount of lead in the water supply.
And children are being born brain damaged. We know that happens.
Under this amendment, you could hide behind unfunded mandates and
say, gee, it is not that we philosophically oppose it, but we did not
really get all the funding, and they look at the record of this
conversation here, and it is a little unclear, so they hire a lawyer,
and it is 10 years down the road, and kids are drinking this water. Of
course, I think the parents would probably not allow them to drink the
water. They would buy bottled water, or they might move to another
community. That is the effect of this type of an amendment.
So I say, Mr. President, again, when we have the chairman and the
ranking member standing up here and saying, look, they understand the
problem that the Senator from New Hampshire has raised, that absolutely
we have to be mindful; but this act is mindful of the issues of
unfunded mandates and underfunded mandates. If we gut the
enforceability of our Government here, this bill might as well not even
be here. I, frankly, would understand it if both of our leaders on the
committee--which is called, by the way, the Environment and Public
Works Committee--withdrew the bill, because it would not have any means
of enforcing.
I will close by reading the words of the amendment.

The Administrator may not commence a penalty assessment
proceeding under this subsection against a political
subdivision, and any pending penalty or penalty assessment or
collection proceeding under this subsection against a
political subdivision shall be waived----

In other words, there will be no assessment, there will be no fine,
there will be no enforcement.

if the noncompliance of the subdivision that is the subject
of the penalty or proceeding results from an unfunded Federal
mandate.

So it is a fancy way of saying we want a little fig leaf that we can
hide behind, so that we have an excuse not to make sure that the
children are drinking safe water, that pregnant women are drinking safe
water, that the frail elderly are drinking safe water, that all of us
can be certain that we are drinking safe water.
Mr. President, I think I have been as clear as I can be. I strongly
oppose this amendment, and I hope that our colleagues will stand up and
be counted and support our chairman and ranking member.
I yield the floor.
Mr. CHAFEE addressed the Chair.
The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
Mr. CHAFEE. Mr. President, I thank the Senator from California for
that strong statement.
Mr. GREGG addressed the Chair.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. GREGG. Mr. President, I must respond briefly to the Senator from
California, because I believe it is a bit unusual for those who are not
actually drinking the water to expect that they are going to have even
a higher level of concern about the water than those who do drink it. I
mean that is essentially the tenor of the argument, which is that the
elected officials in--wherever it was--or the county commissioner
group, or water commissioner group, is going to somehow turn its back
on not only the community that it lives in, but its own good health,
but that we here in Washington are going to know how to take care of it
better for them. Now, that may be. That situation might occur. That
hypothetical is a possibility. I suppose that is true, but it is not a
likelihood.
Most people, when they are elected to public office, are elected
because they conscientiously wish to improve their community, and if
they know something is wrong with the water, they are going to try to
do something about it primarily out of their own concern. I really
think that to raise issues like pregnant women and lead in the water is
to use hyperbole that is not relevant to this amendment, which is not
really a gutting amendment, as the Senator characterized it.
It is a simple amendment that says, listen, if you do not fund it,
you do not fine until you do fund it. And it is reasonable that you are
going to be funding all of this. On the chairman's description of the
way this bill works, that is going to occur. So this amendment may
never come into play. But we should at least have the fairness at the
local level to say that until we can fund it, we are not going to fine
you or hit you with that double shot.
I yield back my time, and I suggest to the manager of the bill that
if we can come to a time certain, we can bring it to a vote.
Mr. BAUCUS. Mr. President, I understand there is at least one Senator
coming to the floor wishing to speak against this amendment. He is on
his way. It is only fair and appropriate to wait until he arrives.
Before he arrives, however, I do think it is important to point out
that this is a gutting amendment. Why do I say that? I say that
because, first of all, there are not very many EPA inspectors. The
enforcement personnel are pretty thin, and there are not going to be a
lot of cases when EPA is coming into a community or the U.S. attorney's
office, or whatever, on an enforcement action. We know that in the real
world 99 percent of the time whenever there is a difference between,
say, a potential law enforcement officer and, in this case, a
community, things get worked out; they get resolved in one way or
another, and the actual action is not really filed.
In those few instances where a community, for some reason, whatever
reason, decides it does not want to comply with the standard--and there
could be all kinds of reasons--and in those few instances where it
decides it does not want to comply with a Federal standard,
essentially, the EPA is precluded from enforcing it. Why? Because as I
read this amendment, that community, subdivision, could say, well,
there is not a total funding from Uncle Sam for this requirement; they
are one penny short. Therefore, no enforcement action, none, zero. One
penny short.
How easily can a community find that it is one penny short? I submit
pretty easily. There are all kinds of ways that attorneys are going to
find ways to say, well, gee, there are dollars here for this, but not
for that, because you did not include the indirect costs to this, or
the administrative costs that we allocated for that. Our allocation
says that the Federal requirement portion, the administrative cost,
should be 10 percent, and you say it is less than 10 percent, but we
say it is 10 percent. Litigate it. No enforcement action.
On the other hand, the Senator is saying, well one penny, that is
still a funded mandate. One penny short is still a funded mandate. If
the Senator is saying that, then the question is: What is a sufficient
Federal funding? Five percent short? Ten percent short? Who knows? That
obviously raises a whole host of questions and even more litigation as
to how much is enough. You cannot have it both ways. One penny short,
which an attorney can find easily if he is worth his salt; or, gee, it
is not substantially federally funded, and you get all these questions.
Therefore, this is a gutting amendment. This amendment sounds
beguiling and seductive, but if you look at the real, practical
effect--the practical effect is no Federal enforcement of Safe Drinking
Water Act standards where communities do not want to comply. That is
what this amendment does.
It is for those reasons and for the very simple reason that this is
not a proper amendment. People want to be sure that the water they
drink is pretty safe. There may be a reason why a community does not
want to meet a standard. It has happened. There are cases where that
happens.
In a lot of these cases, the communities, frankly, want Uncle Sam to
tell them to meet this standard because they can point the finger and
blame Uncle Sam, or Washington, DC, or some regional office that they
themselves do not have to bear the brunt of raising the standards and
get the job done.
Most communities, I am sure, want to do a good job. Most communities
want safe drinking water. They all want safe drinking water. For some
reason--Who knows?--they may not want to meet a standard.
I might say that the standards in this bill are not overbearing. The
standards in this bill, particularly regarding small systems, are
reduced. The monitoring requirements are reduced. The dollars that we
have provided to install new technologies to address contaminants are
increased. There are more Federal dollars, many more Federal dollars.
I remind Senators to look at the chart behind me. It is basically a
fourteenfold increase, 14 times more, plus more flexibility. It was
really more than this chart indicates, because Governors can transfer
dollars from the clean water revolving to the safe drinking water
revolving fund to meet system's needs.
To sum up, I might say that this bill, is a good balance. It is a
good balance between requirements, on the one hand, and reducing
excessive burdens, on the other.
This amendment dramatically upsets that balance. It does, I think,
effectively prevent the United States from enforcing very reasonable
provisions in the Safe Drinking Water Act which, in those communities,
for one reason or another, do not want to comply, jeopardize the safety
and the cleanliness of their water.
I just think that it is not a provision; it is not an amendment that
we in the U.S. Senate want to enact into law.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. GREGG. Mr. President, if we are going to get into the issue of
hyperbole, because this appears to be the movement of this debate, let
me simply point out all those folks who are listening in on Senators,
everyone who has sponsored an unfunded mandates bill--and there is a
majority in this body that has done exactly that--if you cannot vote
for this very small toe-in-the-water type of an approach, this
miniature movement, this baby step on the issue of unfunded mandates,
then you really are going to have a lot of trouble going back to your
States, going back to your towns, going back to those town meetings and
explaining to the local officials when they ask you why do we
constantly get these mandates, why do you tell us what to do with our
taxes when we have other needs in our communities, why is it that when
we need more police and we need to pay our teachers more we have to
spend the money on something you told us to do from Washington that you
are not willing to fund, you are going to have a lot of trouble saying
to those folks: ``I am against unfunded mandates. I just was not able
to vote for this little itsy-bitsy idea that came through the Senate on
the drinking water bill.''
So we are going to go to hyperbole that this is a gutting amendment,
which it certainly is not for all the reasons which we outlined on this
floor for the last hour and a half, that you have to deal with the fact
that this amendment is really a very tentative attempt to address the
issue in a fair way so the communities are not hit twice, first with
the unfunded mandate and then with a fine.
But if we are going to start using hyperbole, then I think people
better look themselves in the mirror in this body and say why do I
sponsor the unfunded mandates bill and why do I when I go back to my
district and talk about how opposed I am to unfunded mandates when I am
not even willing to vote for this one little simple idea, that small
step on a bill which we already had outlined to us on numerous
occasions is not an unfunded mandate anyway.
It has no impact. It has virtually no compliance activity involved in
it. So clearly it is not going to be affected by this abatement of the
fine.
The maximum fine collected was $70,000 only under this bill. So that
is the maximum ever to get abated.
So why are we so exercised about it. I do not know, because quite
honestly this is not that significant a step on the issue which is the
core issue which is how we get to unfunded mandates. As long as
Congress continues to pass these unfunded mandates, we will continue to
pervert the relationship between the Federal, the State and the local
governments in this country. We will continue to undermine the
confidence of local community leaders in our willingness to stand
behind our words.
That is the bigger issue of unfunded mandates which really has not
been raised in this debate by me until this point but which I guess it
has to be raised at this time because that is what the debate has
become, the debate of hyperbole.
So ask yourself if you are not willing to take this little step
forward do not go back to towns and cities to the next town meetings or
next Kiwanis Club or Rotary meeting or next Chamber of Commerce meeting
or next community service meeting and when the question is asked about
what about this unfunded mandate give a lecture on how much you are
opposed to it because, believe me, you cannot be if you vote against
this amendment.
The PRESIDING OFFICER. The Senator from Montana.
Mr. BAUCUS. Mr. President, this amendment essentially creates a false
choice. This amendment basically says either you are for funding the
mandates or you are for sufficient Federal enforcement to the exclusion
of the other but not for both, which is a false choice.
Obviously, we in this U.S. Senate want to fund the mandates and we
want sufficient enforcement of the provisions. Obviously, we want both.
Obviously, the solution is to deal with those enforcement issues first
and enforcement in the best, most reasonable way; second, deal with the
mandates in the best, most reasonable way but not have a 100-percent
linkage between the two. The 100-percent linkage in this amendment
creates a false choice. It is either black or white. It is all or
nothing.
This amendment creates an all-or-nothing, very artificial, very
constrained situation. Either we are for totally funding the mandates
under this amendment or if we are not for totality in every case under
this amendment we are not for Federal law enforcement.
I do not think that is where the Senate wants to be. I do not think
that is practically what the Senator from New Hampshire really wants
either.
I am confident that the Senator from New Hampshire would like to have
these so-called mandates funded as well as possible, close to 100
percent as possible. I think the Senator would also like to have good,
sufficient Federal law enforcement as reasonable as possible. I am
quite certain that the Senator from New Hampshire is not saying no
Federal law enforcement whatsoever if there is not a total 100 percent
fully funding of this requirement. I do not think he really means that.
I dare say I do not think the people of New Hampshire really mean that
either or want that.
I think that the better way to deal with the question on the one hand
of funding the mandates as in the committee chart behind me
demonstrates that we can do better, we will work to do better over the
months and years ahead and also we want to deal with the important
level of law enforcement, but we do not want a 100 percent either or
linkage where it is either all one or all the other but not some
reasonable amount of both.
The effect of this amendment is all or nothing. We do not want all or
nothing in the United States. We want kind of a reasonable level of
both. That is what we want. I think that once we focus on that all or
nothing which is not the will, I am sure of the Senate, we will realize
let us not adopt this amendment but let us deal with the funding
question responsibly and properly and also deal with the enforcement.
I note that the Senator from Ohio, the chairman of the Governmental
Affairs Committee, is now in the Chamber, who worked hard on this
question of unfounded mandates.
I yield the floor.
Mr. CHAFEE. I wonder, Mr. President, if we could have some kind of an
understanding after the Senator from Ohio speaks. Would it be the floor
manager's judgment that we stack the amendment of the Senator from New
Hampshire and get on with the Senator from North Carolina? I think
there are going to be several other amendments after him. As I
understand, that is what the hope is.
Is that agreeable with the Senator from New Hampshire?
Mr. BAUCUS. I say it is better to dispose of this amendment as soon
as we finish debating. I do not see any reason for postponing the
actual vote.
Mr. President, I yield the floor.
Perhaps, after the Senator from Ohio finishes his statement, we will
come pretty close to wrapping up this debate. It is about 20 before 5
now. Maybe around 5 o'clock, I would contemplate a vote on this
amendment, unless there is other intervening business.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. GLENN. Thank you, Mr. President.
Mr. President, the Senator from New Hampshire brings up a very, very
important problem that we are in the process of addressing in the
Governmental Affairs Committee.
This has been a subject that has been coming up increasingly over the
last 3, maybe 4, years. It is a problem of when the Federal Government
mandates something that costs the States in either enforcement or in
procedures or what they have to do and it becomes very expensive.
Now you pile one of these requirements on top of another, starting
way back several decades ago, and pretty soon the States are really up
against it, as far as being able to provide the funds to do what has to
be done.
I might add that this is one of the results of the so-called
revolution we had in the difference in Federal-State relationships
beginning back in the early 1980's, the so-called Reagan revolution.
The idea was, if things were worth doing, we will send them back to the
States and States will fund them if they are worth doing and we will
get out of some of this business of the Federal Government requiring
things of the States. That was all well and good, except we have the
same requirements but not the funding from the Federal level to cover
all these things, and back in those days we did cover a higher
percentage than we do now.
But, regardless of that political background, we have unfunded
mandates as a requirement and it really is hitting the States and local
communities hard, very, very hard.
So I am complimentary to the Senator from New Hampshire for bringing
it up, but I would submit that, rather than having something like this
brought up on every piece of legislation that comes up--and we could do
that--the way to solve this is the way we are going at it in the
Governmental Affairs Committee.
Let me tell you what we have done. We have some eight bills before
the committee now, including one by Senator Gregg, the Senator from New
Hampshire, who is a sponsor of this amendment. We started last fall
addressing this particular problem and we have eight bills in
committee. We had a hearing last November 3, at which Senator Gregg
testified on one of the eight bills. Other Members of the Senate and
Members of the House also testified before the committee.
What we have been trying to do is work out a compromise position that
would work for everyone. I think we are pretty well along on that.
Senator Kempthorne has what was one of the more drastic proposals
that just cut off everything, period; and that is if there was any cost
at all. That is one extreme. And that would mean, even technically, I
suppose, even if we asked for a report to come in and it required
postage, that would be an unfunded Federal mandate. I do not think
anyone wanted to take it that far, of course.
But, nevertheless, we have been having hearings on this. We had one
last fall. We had one hearing on April 28 of this year. Representatives
of the U.S. Conference of Mayors, the National Association of Counties,
the National Governors Association, the National League of Cities, the
U.S. Conference of State Legislatures, and Democratic and Republican
elected officials have all testified, including several Senators, at
these hearings.
We have been working with Senator Kempthorne and with the
administration. Senator Roth, the ranking minority member of the
committee, and I have worked with them. We are in the process of
working out comprehensive mandate reform legislation. We have that
pretty well reasonably worked out. We are planning our markup on it, as
a matter of fact, on May 26, just next week.
There have been good faith negotiations underway with Senator
Kempthorne and others and I feel substantial, very substantial,
progress has been made. We have had discussions and negotiations.
It seems to me that the way to solve this is by a comprehensive piece
of legislation that we are about to mark up next week. Once that is
done, we will bring it to the floor as fast as possible. I hope that it
will cover this problem to the satisfaction not only of Members of this
body, but also to all of those organizations that I mentioned.
It is a real problem. It is one that I think the Senator from New
Hampshire is absolutely correct in bringing up and keeping attention
focused on this particular issue, because it is a very major problem.
The States are out of money and do not feel that they can put taxes
up in some of these areas where the Federal Government puts new
requirements on them but does not follow with the money to carry out
those programs. We heard over and over again in our committee during
our last hearing with all of these different organizations that I
mentioned, ``No money, no mandates.'' ``No money, no mandates.'' I,
basically, agree with that. I am very sympathetic to that, but it can
be carried to extremes.
That would just stop Government in its tracks, if we pass some of the
legislation that has been proposed, not particularly this legislation
today. But some of the other proposals, if carried out right to the
letter of the way they are written, it would literally stop Federal
Government in its tracks, even for good programs that the States want.
And so, I think we have to be careful that we do not do more harm than
good.
What I would hope is that Senator Gregg would either withdraw this
amendment or, if we have a vote on it, I urge my colleagues to vote
against it, with the idea that we are coming up with legislation that I
think will be satisfactory and I think most of the Members of this body
will approve. We should have that marked up and ready to come to the
floor after our markup that is scheduled on May 26.
I hate to oppose this amendment, because I know that we do have to
deal with the unfunded mandate problem. We are not trying to put that
off. I am not trying to delay it. I think, through the years, we should
have moved ahead more rapidly in dealing with this, because it has been
a problem that has been growing very, very rapidly in our communities
and in our States.
So we want to deal with it, but I want to deal with it by bringing
out legislation that applies to unfunded mandates across the board.
With that, I hate to oppose this amendment, but I will oppose it and
urge my colleagues to vote against it if it is brought up to a vote. It
is something we do have to deal with. I want to deal with it in a
better way that will deal with the whole unfunded mandate problem.
I yield the floor.
Mr. GREGG. Are we ready to vote?
Mr. BAUCUS. Soon.
Mr. President, due to business of other Senators at this moment, I
think it would be inappropriate to vote on this amendment precisely at
this time.
I, therefore, ask unanimous consent that a vote on or in relation to
the Gregg amendment occur at 5:30 today, and that no second-degree
amendments be in order prior to disposition of this amendment numbered
1712.
The PRESIDING OFFICER. Is there objection?
Mr. CHAFEE. Mr. President, it is my understanding that Senator
Faircloth will go ahead now and it may well be that he will have his
amendment concluded with by 5:30.
Suppose he is not through, then what happens? He is just interrupted?
Mr. BAUCUS. That is correct.
The PRESIDING OFFICER. Is there objection to the unanimous-consent
request?
Without objection, it is so ordered.
Mr. BAUCUS. Mr. President, I ask unanimous consent that, when the
vote occurs on the Gregg amendment, I be allowed to move to table and
the yeas and nays be ordered.
I withdraw that request.
Mr. President, I suggested absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. BAUCUS. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BAUCUS. Mr. President, I think we have pretty well wrapped up
debate on the amendment offered by the Senator from New Hampshire.
Before turning to the next amendment, I ask unanimous consent to have
a letter printed in the Record. It is a letter from Bob Perciasepe, the
Assistant Administrator of the EPA. Essentially the letter states that
he, Mr. Perciasepe, Assistant Administrator for Water in the
Environmental Protection Agency, is deeply concerned about the
amendment offered by Senator Gregg. He says it would upset the careful
balance the committee has drafted. It would severely hamper enforcement
of the Safe Drinking Water Act and could bring progress on drinking
water protection to a grinding halt. Drinking water systems across the
country would no longer be held responsible for providing basic
drinking water safeguards, such as protection against microbiological
contaminants and lead.
There being no objection, the letter was ordered to be printed in the
Record, as follows:

U.S. Environmental Protection Agency, Office of Water
Washington, DC.
Hon. Max Baucus,

Chairman, Committee on the Environment and Public Works, U.S.
Senate, Washington, DC.

Dear Senator Baucus: The Safe Drinking Water Act bill, S.
2019, which passed the Committee on the Environment and
Public Works by a unanimous vote, contain much needed reforms
to reduce regulatory burdens and increase flexibility while
carefully balancing essential public health protections.
I am deeply concerned by an amendment offered by Senator
Gregg that would upset the careful balance that you and the
Committee have crafted. The amendment would severely hamper
enforcement of the Safe Drinking Water Act and could bring
progress in drinking water protection to a grinding halt.
Drinking water systems across the country would no longer be
held responsible for providing basic drinking water
safeguards, such as protection against microbiological
contaminants and lead.
According to industry data, 74 percent of water consumers
are willing to pay higher water bills in order to receive
water above federal standards. This amendment could undercut
the substantial progress that has been made to meet the goal
of safe drinking water for all Americans. I strongly urge you
to oppose the amendment.
Sincerely,
Robert Perciasepe,
Assistant Administrator.

amendment no. 1714

(Purpose: To strike the provisions relating to labor standards)

The PRESIDING OFFICER. The Senator from North Carolina is recognized.
Mr. FAIRCLOTH. Mr. President, I send to the desk an amendment to the
safe drinking water bill that will strike the Davis-Bacon prevailing
wage requirements for construction of drinking water treatment plants
and ask for its immediate consideration.
The PRESIDING OFFICER. Without objection, the pending amendment is
set aside. The clerk will report.
The bill clerk read as follows:

The Senator from North Carolina [Mr. Faircloth] for
himself, Mr. Craig, Mr. Nickles, Mr. Brown, Mr. Smith, Mr.
Grassley, Mr. Gramm, Mr. Helms, Mrs. Hutchison, Mr. Coats,
Mr. Cohen, and Mr. Kempthorne proposes an amendment numbered
1714.

The amendment is as follows:

Beginning on page 22, strike line 12 and all that follows
through page 23, line 8.
On page 23, line 10, strike ``1478'' and insert ``1477''.
On page 23, line 23, strike ``1479'' and insert ``1478''.
On page 118, line 11, strike ``1479'' and insert ``1478''.

The PRESIDING OFFICER. The Senator from North Carolina.
Mr. FAIRCLOTH. Mr. President, I have spent the last 46 years in the
private sector. I have met a payroll every Friday for every week of
those years and with a little luck will meet one this Friday. It is
unfortunate for the American people that there are not more
representatives who know what it means to run a business. If there
were, we would have repealed the union-inspired mandates like Davis-
Bacon long ago.
It is time we agreed to an amendment like the one before us. We need
to send the cities and towns a clear message that the Congress is no
longer going to burden them with unfunded Federal mandates like Davis-
Bacon. And certainly it is time to let the taxpayers know that Congress
is no longer willing to waste their money on union mandates.
Davis-Bacon prevailing wage requirements are a drain on the taxpayer,
the private sector, the job market, the towns and, in this bill, the
environment. The only beneficiaries of Davis-Bacon are Big Labor and
its allies in the Congress. Obviously, Federal prevailing wage laws are
a bad idea whose time will never come.
Do not misunderstand. As any union boss will tell you, Davis-Bacon is
a successful labor law. It does exactly what it is supposed to do; it
drives labor costs above the market price and excludes low-skilled,
entry-level workers from the job market and eliminates any potential
for apprentice training. It is big labor's best friend. It is the
taxpayers' worst enemy.
Let us take a look at who gains and who loses by continuing to
mandate wages on Federal projects. First, the taxpayer loses. Most of
us are familiar with the studies that, according to the GAO, as anyone
who has ever run a construction company, as I have, knows, the cost of
Federal-funded construction is driven up by anywhere from 5 to 15
percent as a result of Davis-Bacon.
The effect is even worse in rural areas where Davis-Bacon drives the
cost up by 26 to 35 percent.
The Congressional Budget Office has prepared the most conservative
estimate available for the premium the taxpayers pay because of Davis-
Bacon. They say the costs rise 1.5 percent because of the act. But from
that very low and conservative estimate, it is determined that the
taxpayer is expected to fork over an additional $3.2 billion over the
next 5 years because of Davis-Bacon. And in this bill alone, we would
save $84 million, and that is also a low ball estimate.
Mr. President, we could argue about the minutiae of studies well into
the night, but no one in this Chamber will argue that Davis-Bacon is
saving the taxpayers any money. It drives up cost, reduces competition,
pure and simple. That is what it is designed to do, and it does not
improve the quality of the finished product.
By mandating that federally funded construction projects pay the
prevailing or union wage--and they will always be able to identify as
the prevailing wage--we drive up the labor costs to the taxpayers--the
labor cost--by 50 percent on federally funded projects, and that does
not even take into account the massive amounts of paperwork, the
bureaucracy created in the Department of Labor to administer and
determine prevailing wages for the thousands of Federal contracts let
each year. It is estimated that over 6 percent of paperwork generated
at the Department of Labor is a result of Davis-Bacon--6 percent of the
paperwork coming out of the Department of Labor. And every bit of it is
a useless, bureaucratic waste of time and money.
Mr. President, it is impossible for the Department of Labor or anyone
in Government, for that matter, to accurately determine what someone's
proper wage is. Only the private sector and the free market can
determine what is a proper wage.
Mr. BAUCUS. Might I interrupt the Senator at an appropriate point to
get a consent agreement? I do not want to break into the flow of the
Senator's presentation.
Mr. FAIRCLOTH. Excuse me.
Mr. BAUCUS. I ask what would be a proper time for me to put a
separate request to the Senate allocating time?
Mr. FAIRCLOTH. I am almost through. It will be all right to divide
the time.
Mr. BAUCUS. Mr. President, I ask unanimous consent that the time
between now and 5:30 p.m. be equally divided in the usual form for
debate on the Faircloth amendment; and that, following disposition of
Senator Gregg's amendment, the Senate vote on or in relation to Senator
Faircloth's amendment No. 1714; and that no other amendments be in
order prior to disposition of Senator Faircloth's amendment.
The PRESIDING OFFICER (Mr. Kohl). Is there objection? Without
objection, it is so ordered.
Mr. BAUCUS. I thank the Senator.
Mr. FAIRCLOTH. Mr. President, the private sector and the free market
are the only factors that can determine what is a proper wage.
Governments around the world have discovered the futility and waste
associated with manipulating wages and markets. It simply has never
worked. Yet, the U.S. Congress today and every year since 1931 has
mandated that the Department of Labor somehow determine the proper wage
that should be paid for 300 different job categories in 20,000
different locations around the country. Every bricklayer, backhoe
operator, carpenter, electrician and post-hole digger has to get a
correct Federal unionized wage.
This wage is to be determined not by the real market but by the
bureaucrats in Washington. That, Mr. President, is an impossible task.
Everyone knows the Labor Department cannot possibly do the job, and for
the past 63 years, the prevailing wage has been one thing and one thing
only: the union wage. That is why in places like Cody, WY, they use a
Denver pay scale, and in Poplar Bluff, MO, they use St. Louis union pay
scales. This goes on all over the country.
Anyone with a drop of common sense knows there is not any connection
between the selected wage and the true local market wage. The local
market is really of no consequence. The union wage simply prevails and
the Davis-Bacon wage goes on.
The second loser is the private sector. The cost to the private
sector in lost competition is enormous. I was in the construction
business for many years, and I can tell you firsthand the consequence
of the Federal Government mandating wage rates.
We have created two separate construction markets in this country.
The Federal market, whose foundation is Davis-Bacon wage mandates, is a
maze of union-inspired rules and regulations. To compete in this
market, you and your workers have to play by the union rules or, even
worse, you can very simply just sign your company away to union
contracts in the first place. And we all know what that means: Changing
a ditch digger's rate to that of a truck driver because he drove a
truck across a parking lot, or an electrician scale because he threaded
a piece of wire. Those are the rules that Davis-Bacon brings to the
construction industry.
That kind of Government-created private sector bureaucracy has
limited the Federal construction market, for the most part, to a small
group of union-controlled contractors who specialize in Davis-Bacon
mandates. They are not competitive enough to operate in the free
enterprise system. They do nothing but Government work under the Davis-
Bacon rules.
Mr. President, Davis-Bacon mandates will cost the private sector $100
million this year in paperwork alone. Eleven million payroll reports,
requiring 5\1/2\ million man-hours, will be submitted by employers to
the Department of Labor in order to conform to Davis-Bacon
requirements--11 million payroll reports.
The requirements that payrolls be met weekly rather than biweekly, as
is often the practice in the construction industry, is enough to
discourage any smaller firm from competing for Federal contracts. Just
a single payroll requirement is symbolic of the arrogance of Davis-
Bacon and the bureaucracy and the unions that support it.
It is not Congress' business to mandate the private sector's payroll
changes that are effective for them only because the union bosses
decide they would like it differently. I hope Senators who support
Davis-Bacon will put themselves in the shoes of employers who are
willing to hire entry-level workers but can find no economic rationale
in the face of Davis-Bacon. I think there is a simple reason and an
unfortunate reason why they cannot. The vast majority of Senators'
hiring decisions have been limited to staffers, bureaucrats and law
clerks. They simply have no firsthand knowledge of the private sector
and the counterproductive effects of the rules and regulations that
this Congress has passed over the last 30 years and longer.
The final loser is the cities and towns who are trying to clean up
their drinking water. This bill currently marks an unprecedented
expansion of the privileged wage laws of Davis-Bacon. We usually think
of Davis-Bacon in connection with Federal building projects, but this
bill is about local projects and it tells cities and towns that, if
they take a penny of money from the State revolving fund, they must
follow Davis-Bacon and Federal wage laws. That becomes one more mandate
upon the cities and counties of this country, an unfunded one, as most
of the Federal mandates are.
If we want to get the whole purpose of the bill, if we really want
cleaner water, then we are going at it the wrong way. We need cheaper
costs, and eliminating Davis-Bacon would be one way to cheapen the
cost.
Mr. President, the Davis-Bacon issue has been fought many times in
the Senate and will, unfortunately, be fought many times again, and I
am well aware of that. But Senators have an opportunity here to prevent
Davis-Bacon from being forced upon what is essentially a State program.
This bill makes available $5.6 billion for States to loan out as they
see fit, with a 20-percent match into this revolving fund. It is not
the business of Congress to say that States--and that is what they
are--that all of this must be constructed using union funds. I believe
the States and cities have had enough of unfunded mandates, and I think
they have had enough of Davis-Bacon, particularly those States without
prevailing wage laws. It is one more encroachment on the ability of
governments outside of Washington to decide such things for themselves.
They have lost the decisionmaking process. It is dictated to them by a
Government bureaucracy from Washington.
It is another power grab by Big Labor. It is one more arrogant
attempt by Congress to manipulate the private sector for its own
benefit and reasons.
I propose that Senators who may be undecided this time do the right
thing. Let us get the Davis-Bacon monkey off the back of local
governments and the private sector. Vote for this amendment and your
State will get 30 percent more water treatment construction for its
money in rural areas. Vote against it and you are saying that Big Labor
is more important to you, more a factor than is clean drinking water
for this Nation.
Mr. CRAIG. Mr. President, I rise in support of the Faircloth
amendment to S. 2019, the Safe Drinking Water Act Amendments.
As reported, section 3 of the bill would add a part G--sections 1471-
1479--to the Safe Drinking Water Act, requiring the EPA Administrator
to make grants to States for capitalizing State revolving loan funds
[SRF's] to finance facilities for the treatment of drinking water. This
new grant program is modeled after a similar one created in the Clean
Water Act.
Unfortunately, the new section 1477(a) in the bill would apply the
requirements of the Davis-Bacon Act of 1931 to the SRF's. Because
Davis-Bacon directly applies only to public works and public buildings,
it would not apply to SRF's without such an explicit extension.
Davis-Bacon should not apply to SRF's; it would amount to another
Federal mandate on the States:
Davis-Bacon is a standard for Federal procurement contracts for
construction--it shouldn't be imposed on State and local decisionmaking
about State and local needs and priorities.
The Davis-Bacon provision in S. 2019 is another example of the
Federal Government giving with one hand and taking away with the other.
The bill says that we'll help pay for some of the capital costs of
Federal drinking water mandates. But then we add Davis-Bacon to make
capital improvements more expensive, more regulated, and more
paperwork-intensive.
Because this bill applies Davis-Bacon to projects with any Federal
SRF money, it also applies Davis-Bacon to the matching funds raised by
State, local, and private sources. In other words, the Federal
Government would be dictating to States and others how they should
spend their own money. This simply isn't fair.
This provision also provides us with a case of the tail wagging the
dog. Even though the Federal share of any SRF project may be as great
as 80 percent, States also may stretch that money out among more
projects. In some cases, Davis-Bacon could wind up applying to projects
with a very small Federal component.
The new section 1477 created by this bill includes a disturbing,
unprecedented expansion of Davis-Bacon to the proceeds of loan
repayments:
The purpose of this bill is to authorize seed money to set up
revolving loan funds--and I stress the word ``revolving.'' The loans
are repaid and funds are reloaned. The current practice as in the Clean
Water Act, has been to apply Davis-Bacon only to the initial pool of
money receiving a Federal contribution. If Davis-Bacon has to apply,
this should be the case--it should come attached directly and solely to
Federal money.
Over time, revolving funds become State money even more obviously.
The Federal taint is less and less.
However, this bill could apply Davis-Bacon to subsequent loans made
out of revolving funds 5, 10, and 20 years after the Federal Government
has stopped contributing any funds.
Revolving funds are administered by State agencies, are matched with
State funds, and loaned out based on State and local assessments of
need. If this is the best way to characterize SRF's at their creation,
it is a much truer description still after funds are repaid and
reloaned.
Another obvious indicator of the nature of SRF's as State funds is
written right into this bill: States would be allowed to decide whether
or not to forgive loans to disadvantaged communities. It doesn't make
sense to apply a Federal procurement standard like Davis-Bacon to a
subsequent loan that was made possible solely because the State
collected loan repayment it could have forgiven, instead.
Applying Davis-Bacon to SRF's is inconsistent with the stated intent
of the Davis-Bacon Act itself:
Davis-Bacon supporters always assert that the purpose of the act--and
this is consistent with legislative history--is to protect local
economies and markets from disruption by big Federal projects.
Applying the act to SRF's raises a logical contradiction: This bill
would apply a Federal procurement rule to State and local projects,
ignoring the needs, priorities, and standards of the States and
localities, in the name of ``protecting'' those States and localities
from Federal interference.
Another, little noticed, local control issue: Subsection (b) of the
Davis-Bacon provision would allow the Labor Department to override the
judgments of EPA and State and local officials on when to apply Davis-
Bacon:
Subsection (b) of the new section 1477 would allow the Department of
Labor to override determinations made by the EPA Administrator and
State or local officials as to whether the nature of the work being
performed or the nature of a contractual relationship on an SRF project
was such that Davis-Bacon should not apply. This is a departure from
the traditional legislative approach in, and division of responsibility
under, the Davis-Bacon related acts.
There is no justification for allowing Department of Labor
bureaucrats who have no practical experience in safe drinking water
programs, and who know nothing about local economic circumstances, to
impose their judgment on EPA and local officials who are more qualified
and better situated to judge the nature and scope of a contract on a
project funded out of an SRF.
Proponents of Davis-Bacon expansion have been pursuing a strategy of
inflicting death by a thousand small cuts. Subsection (b) is another
example; it is a provision that has no rationale as a piecemeal
expansion except for the sake of expansion itself.
There actually is an interesting history behind this particular
issue. In the mid-1980's, DOL actually tried to apply Davis-Bacon to
private construction of a shopping center in Muskogie, OK. The city, in
a private-public partnership, had used a Federal grant to pay for part
of the land acquisition. In essence, the Department of Housing and
Urban Development said that Davis-Bacon applied only to federally
financed construction in this and similar cases. DOL argued that it had
the authority to apply Davis-Bacon to private construction if Federal
funds had helped pay for an indirectly related activity. The Justice
Department ruled in favor of HUD. Subsection (b) attempts to overturn
that ruling for drinking water SRF's.
As an example of how such a reversal would affect communities under
this bill, let's say a private developer of an industrial park or
planned community agrees to construct a drinking water treatment
facility; and the local government uses SRF funds for technical
assistance, or maybe partial land acquisition. Normally, EPA and the
State and locality would determine whether Federal money was directly
related to construction and whether the nature of the work was more
properly considered private, local-public, or federally assisted.
Subsection (b) is intended to give bureaucrats, remote from the actual
community and its SRF project, the power to superimpose their opinions
as to when Davis-Bacon should apply.

costs

The bill authorizes $600 million in fiscal year 1994 and $1 billion
annually over fiscal years 1995-2000, for a total of $6.6 billion.
Davis-Bacon would escalate total construction costs by at least 1.5
percent, or $99 million of the total Federal contribution if that much
is appropriated. In other words, the Federal Government would get $99
million less worth of safe water capital improvements--less safe
drinking water--for its money.
The committee report estimates that total capital costs to comply
with Federal standards could be $8 billion or more. Of this total, the
Davis-Bacon cost premium would amount to at least $120 million--
including at least $21 million in added costs imposed on States and
localities.
I want to point out that 1.5 percent is what CBO estimates Davis-
Bacon adds to construction costs, as a national average, above what
they would be if the market prevailed.
The local impacts of Davis-Bacon, however, vary dramatically.
The General Accounting Office, the Wharton School, the Grace
Commission, and others have found that Davis-Bacon commonly adds 5 to
15 percent to construction costs.
A 1982 University of Oregon study found that Davis-Bacon increases
costs in rural areas by as much as 26 to 38 percent.
It's ironic and unfortunate: Applying Davis-Bacon to the safe
drinking water SRF's means that those communities already least able to
afford Federal mandates in the first place would get socked with the
largest additional, federally imposed costs in complying with those
mandates.
Davis-Bacon restricts competition and discriminates against small and
minority-owned businesses:
Small and minority contractors already avoid Federal construction
contracts like the plague because of onerous Davis-Bacon requirements.
This bill would ensure that the same contractors are also shut out of
State and local drinking water projects.
Again, this is ironic. Members of Congress always talk about helping
small and minority employers--the very employers who create virtually
all new jobs and training opportunities for new and disadvantaged
workers--but by applying Davis-Bacon this bill would slam another door
in their faces.
I remind my colleagues: The National Association of Minority
Contractors has said that Davis-Bacon is ``poison'' to minority
contractors and their employees, and the U.S. Hispanic Chamber of
Commerce has called for outright repeal of the act.
I have spoken before on this floor about the lawsuit now pending, by
several minority contractors, community associations, and the Institute
for Justice, to declare Davis-Bacon unconstitutional on the basis of
racial discrimination. I await with great interest the developments in
that case. In the meanwhile, I agree that the 1931 Congressional Record
showed obvious discriminatory intent when Davis-Bacon was enacted and
that history has shown discriminatory effects.
For these reasons, and for those I offered earlier, I urge my
colleagues to vote for the Faircloth amendment. We should not be
expanding Davis-Bacon coverage still further.
If the Faircloth amendment is not adopted, then I urge that Senators
adopt the amendment by Senator Gregg of New Hampshire, which would
restore the status quo that Davis-Bacon not apply to the proceeds of
loan repayments. But I hope that is not necessary and that we adopt the
Faircloth amendment. If neither of those amendments is adopted, I
understand that Senator Simpson of Wyoming has an amendment to allow
States to exempt disadvantaged communities from Davis-Bacon, and I will
support that effort.
Mr. President, I ask unanimous consent that I be allowed to insert
additional materials into the Record with my statement, including a
letter from the National Association of Minority Contractors expressing
their concern over and opposition to the Davis-Bacon provisions in S.
1547, which has been replaced on the floor by S. 2019, and a letter
from the Coalition To Reform Davis-Bacon, a broad-based national
coalition.
There being no objection, the material was ordered to be printed in
the Record, as follows:

National Association of

Minority Contractors,

Washington, DC, April 25, 1994.
U.S. Senate,
Washington, DC.
Dear Senator: The National Association of Minority
Contractors (NAMC) would like to draw your attention to an
overbearing Davis-Bacon provision in the Safe Drinking Water
Reauthorization Act (S. 1547), a bill which will soon be
considered in the Senate. We urge you to oppose this
provision on the grounds of its overly burdensome requirement
on the states, as well as its heavily adverse impact on small
and small disadvantaged businesses, and lower-skilled
minority workers.
S. 1547 contains a provision which would expand Davis-Bacon
coverage to all drinking water projects funded by the new
state revolving loan fund (SRF) created in the bill. This
Davis-Bacon provision of S. 1547 amounts to just one more
unfunded federal mandate on the states. It would have a harsh
impact on small and small disadvantaged businesses who would
be virtually eliminated from competing on drinking water
projects because of the heavy burden of Davis-Bacon. It would
also have a negative impact on low-skilled workers seeking
jobs on safe drinking water projects, but not qualifying for
the excessive Davis-Bacon wage requirements.
Under the legislation, the federal government would
contribute a total of $5.6 billion to the SRF through the
year 2000. After 2000, the SRF would be capitalized solely by
repayments of the loan by the states. The Davis-Bacon
provision would apply the law's requirements not only for the
first few years of the program, when the federal government
is making a financial contribution, but also when the SRF is
fully capitalized with state funds. The language contained in
S. 1547 is a significant unprecedented expansion of the
Davis-Bacon Act which eventually places the full burden of
the associated inflated costs on the states.
The Davis-Bacon Act is estimated to raise the cost of
federal construction by an average of 5-15%. The inflated
costs in rural areas are estimated at 26-38%. The Davis-Bacon
Act currently impacts states and localities because it is
often applied when the federal government makes only a
nominal contribution and the project is primarily state,
locally or privately funded. The inflated costs and other
problems associated with Davis-Bacon can virtually nullify
the federal government's subsidy. The language in S. 1547
imposes this type of burden on the states, but also goes a
giant step further by applying Davis-Bacon indefinitely--even
when the SRF is capitalized solely with state funds.
S. 1547 purports to provide additional flexibility to the
states. However, the Davis-Bacon provision in this
legislation is entirely contrary to this intent. To date,
eighteen states have chosen to either repeal their
``little Davis-Bacon law'' or have no prevailing wage
statute at all. Rather than providing flexibility, S. 1547
as written imposes another unfunded federal mandate on
states who have already made their choice on this issue.
States who have repealed their prevailing wage law--
including Alabama, Arizona, Colorado, Florida, Idaho,
Kansas, Louisiana, New Hampshire and Utah--and states who
have never had a prevailing wage law--including Georgia,
Iowa, Mississippi, North Carolina, North Dakota, South
Dakota, Vermont and Virginia--clearly do not want the
federal government mandating that they must pay these
unnecessarily inflated costs. It is important to note that
states who do have a prevailing wage statue are already
assured of having prevailing wages paid on projects funded
under this program.
NAMC urges you to support the position that, with states
and localities becoming increasingly financially strapped,
the federal government should not mandate that they pay more
than necessary for much-needed public construction. This
position is not only good for the state governments, but also
for small and small disadvantaged businesses seeking to do
business under state contracts, and also for workers seeking
jobs on state projects. We urge you to oppose the addition of
the Davis-Bacon expansion provision to S. 1547, the Safe
Drinking Water Authorization Act.
Sincerely,
Samuel A. Carradine, Jr.,
Executive Director.
____

Coalition To Reform the

Davis-Bacon Act,

April 11, 1994.
Hon. Larry E. Craig,
U.S. Senate, Washington, DC.
Dear Senator Craig: The Senate is expected to begin debate
on S. 1547, the Safe Drinking Water Reauthorization Act, as
early as this week. The Coalition to Reform the Davis-Bacon
Act is extremely concerned about the Davis-Bacon provision
included in S. 1547, which would amount to an unfunded
federal mandate on the states.
By including the requirements of the Davis-Bacon Act within
S. 1547, you are mandating that states pay a significant
amount more than necessary for construction projects under
these programs. The Davis-Bacon Act unnecessarily raises the
cost of Federal construction by an average of 5-15%, with
costs in rural areas being inflated by as much as 26-38%.
This is a needless waste of taxpayer dollars and thwarts the
progress of additional projects that would be built. These
figures do not take into account the burden that Davis-Bacon
requirements impose on states and localities.
The federal Davis-Bacon law hurts states and localities
because its requirements are imposed regardless of the amount
of funds that the federal government brings to a project. For
example, the federal government could offer a small amount of
money for a primarily state, local or privately funded
project, and the artificially inflated Davis-Bacon wage rate
would have to be paid to all workers on that job. Often times
these increased costs virtually nullify the federal
contribution. The language in S. 1547 would further burden
states by applying Davis-Bacon requirements even when the
federal government stops making its contribution and the SRF
is solely state capitalized.
Eighteen states have seen fit to repeal their state
prevailing wage statute or have no prevailing wage statute at
all, The federal government should not impose Davis-Bacon
requirements on financially strapped state and local
governments, particularly when it is no longer financially
involved.
The Coalition to Reform the Davis-Bacon Act strongly
encourages you to delete this expansive language from S.
1547.
Sincerely,
The Coalition To Reform the
Davis-Bacon Act.
____

Members--Coalition To Reform the Davis-Bacon Act

Air Conditioning Contractors of America.
American Concrete Pipe Association.
American Farm Bureau.
American Portland Cement Alliance.
American Public Transit Association.
American Road and Transportation Builders Association.
Associated Builders and Contractors.
Associated General Contractors.
Brick Institute.
Citizens Against Government Waste.
Contract Services Association.
Council of State Community Development Agencies.
Fluor Corporation.
Independent Electrical Contractors, Inc.
Institute for Justice.
Labor Policy Association.
National Aggregates Association.
National Association of Counties.
National Association of Dredging Contractors.
National Association of Home Builders.
National Association of Manufacturers.
National Association of Minority Contractors.
National Center for Neighborhood Enterprise.
National Federation of Independent Business.
National Industrial Sand Association.
National League of Cities.
National Terrazzo & Mosaic Association.
National School Boards Association.
National Slag Association.
National Stone Association.
National Tax Limitation Committee.
National Taxpayers Union.
Printing Industries of America.
Pubic Service Research Council.
U.S. Chamber of Commerce.

Mr. WOFFORD addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the Senator from
Pennsylvania, [Mr. Wofford].
Mr. BAUCUS. Mr. President, I am about to yield time to the Senator
from Pennsylvania and also the Senator from Massachusetts.
The amendment, I think, is the same one that was offered in
committee, was considered by the committee, and rejected by the
committee. It is the same amendment, and I urge the full Senate to also
reject it. It is an issue that has been debated many times. Frankly, I
think it would be highly improper for the Senate to adopt this
amendment.
I will yield to the Senator from Pennsylvania--how much time?
Mr. WOFFORD. I will be within 2 minutes.
Mr. BAUCUS. I yield 2 minutes.
The PRESIDING OFFICER. The Senator from Pennsylvania is recognized
for 2 minutes.
Mr. WOFFORD. Mr. President, as the Senator from Montana, our
chairman, has said, the Environment and Public Works Committee debated
this provision and voted by an 11 to 6 margin to retain the Davis-Bacon
provisions.
The points made with such strong conviction by the Senator from North
Carolina have been disputed and, I believe, disproved by many studies
and by many thoughtful students of this field.
Dr. John Dunlop, Labor Secretary during the Ford administration, has
studied the impact of the Davis-Bacon Act on costs and found that the
application of the act is neutral with respect to construction costs.
Before coming to the Senate, I was Pennsylvania's Secretary of Labor,
an agency which administered the State's prevailing wage law. I have
seen first hand how these labor protections assure fair wages
prevailing in the locality of the work. They provide for apprenticeship
training to create a new generation of skilled craftsmen. The men and
women of the building trades, Mr. President, are taxpayers, and they
have been building America. The Senate time and time again has
supported the concept of prevailing wage, and I urge the defeat of this
amendment.
The PRESIDING OFFICER. Who yields time?
Mr. BAUCUS. Mr. President, I yield 5 minutes to the Senator from
Massachusetts.
The PRESIDING OFFICER. The Senator from Massachusetts is recognized
for 5 minutes.
Mr. KENNEDY. I thank the Chair.
I rise in opposition to this motion to strike the Davis-Bacon
protections for projects funded under the Safe Drinking Water Act.
There are a number of myths that are frequently circulated about the
Davis-Bacon prevailing wage requirements.
Let me dispel some of the myths about Davis-Bacon.
One of these myths is that Davis-Bacon requires contractors to pay
union wages on Federal construction projects. Davis-Bacon requires that
prevailing wages of the community be paid on Federal construction
projects. A 1986 study of the entire universe of Davis-Bacon decisions
revealed that only 42.6 percent of all area wage decisions had
prevailing rates that were union rates.
The same study found that almost 48 percent of all area wage
decisions issued by the Department of Labor had nonunion wage rates as
prevailing.
It also found with regard to project decisions, 23 percent of all
decisions had union rates prevailing while 62 percent had nonunion
rates prevailing.
Clearly, Davis-Bacon is not merely a facade to protect union wage
rates.
Another of those myths is that construction workers are overpaid, and
that the Davis-Bacon Act requires that they be paid inflated wages that
unfairly enrich these workers at the expense of taxpayers.
This is simply untrue. The Davis-Bacon Act merely requires that
construction workers on Federal projects be paid prevailing wage--that
is the wage that is paid to the majority of workers doing similar work
in the community.
Construction workers are not overpaid. In fact, in March 1994, the
average hourly wage of a construction worker in this country was $14.42
an hour. Because construction workers work on a project-by-project
basis, and are affected by weather and other conditions, the typical
construction worker--even in the best of times--is likely to find work
only about 1,400 to 1,600 hours a year. At the rate of $14.42 an hour,
that typical construction worker produces annual earnings ranging from
$20,188 to $23,072 a year.
This is hardly the kind of income that any family lives royally on.
And these are hardly the best of times for construction workers. In
1993 the unemployment rate among construction workers nationwide was a
whopping 14.3 percent, and I know for a fact that in some construction
locals in my own State of Massachusetts the unemployment rate in 1993
has been in excess of 17 percent.
Mr. President, what we are basically talking about is the wages of
working men and women in the construction industry of this country.
When you get right down to it, let us look at those who are
participating in the Davis-Bacon Program, which effectively means that
the wages are going to be the prevailing wages in that particular area
where the project is going to be built.
Nationwide, the average construction worker is making $14.42 per
hour, working between 1,400 and 1,600 hours a year. Construction
workers only work on a project-by-project basis. Their hours are also
affected because of weather. But, the typical construction worker
nationwide, earns between $20,000 and $23,000 a year.
We are talking about men and women in this country who have a skill
who are making between $20,000 and $23,000 a year. We are talking about
roofers who make $12.79 an hour; carpenters who make $14.33 an hour,
and plumbing, heating, and air conditioner workers who make $15.01 an
hour. I do not understand why the Senator is against these working men
and women who are prepared to work at any time they possibly can and
still make only $20,000 a year. There are a lot of other inequities out
here--people taking advantage of various kinds of projects and systems
and the economy, who are making not only $20,000 but $100,000 or $1
million a year. But we are not talking about these people.
It is thee the working men and women we are talking about. Their
unemployment--as a result of interest rates--is 14 percent nationwide;
in my State, 17 percent. Many of these construction workers are not
even making the $20,000 a year. So you can talk all you like about how
we really ought to stand up for America, how we ought to stand up
against the power of these working men and women. You are talking about
hard-working men and women who are trying to deal with the economic
problems they and their families are facing, whose real income has
actually declined over the period of the last 10 years. And we are
going to say this is striking the cause for justice in America?

Come on. What has the Senator got against working men and women
making $20,000 a year? That is what this issue is about. I just hope
that the Senator's amendment will be defeated.
We can end up with the shoddy workmanship and the overtime that is
necessary for repair when we do not have trained individuals who are
part of the construction trades. A January 27, 1994 article in the Wall
Street Journal recently reported on the growing shortage of skilled
construction workers. The article mentions increasing complaints about
building quality and timeliness.
The protections of Davis-Bacon and the apprenticeship programs
certified by the Department of Labor or a State agency recognized by
the Department of Labor help to ensure that this country has an
adequate skilled labor supply. They also ensure that projects built
with Federal funds are quality projects with good workmanship.
I am just always amazed that some of our colleagues want to go after
the backbone of America--the skilled men and women who are really
building the infrastructure, the ones who are rebuilding the water
systems which provide our families water, the ones making moderate,
even minimal, amounts of money and trying to bring up a family in this
country at the present time.
I hope that we are not going to turn our back on these individuals
and say, well, we are not going to pay you. We are going to nickel and
dime you. We want you to go out and work, but we are going to nickel
and dime you and get your wages down even lower than they are now.
Mr. President, $14,800 a year is now a poverty wage for families of
four. These workers deserve better than a poverty wage. It seems to me
we ought to pay people a living wage--for them and their families.
So I hope that this amendment will be defeated, and I yield the
remainder of my time.
The PRESIDING OFFICER. Who yields time? Four minutes 35 seconds
remain to the Senator from North Carolina.
Mr. FAIRCLOTH. I yield the time.
The PRESIDING OFFICER. The Senator from Iowa is recognized.
Mr. GRASSLEY. Mr. President, I am pleased to support the amendment
offered by my good friend from North Carolina, Senator Faircloth. His
amendment would strike the ill-advised Davis-Bacon provisions from the
Safe Drinking Water Act.
Most Americans are not aware of Davis-Bacon--but they should be.
Davis-Bacon denies American taxpayers the right to get the best deal
for their money. Davis-Bacon denies American taxpayers the benefits of
marketplace competition. Congress--not the marketplace--not
competition--sets the rate of pay for workers.
The result? Federal contract costs sky-rocket. Taxpayers are gouged.
And now, if we defeat the Faircloth amendment, we will expand Davis-
Bacon even further?
If the Faircloth amendment is defeated, Government contract costs
will increase along with Government spending. Is the budget balanced?
Have we conquered the deficit?
What is our objective with the Safe Drinking Water bill? Do we want
money spent on protecting drinking water? Or do we want to throw a
bone--a very expensive bone--to special interests?
If my colleagues defeat the Faircloth amendment, less money will go
to safe drinking water. More money will go to labor.
The bill contributes $5.6 billion to a new State revolving loan fund.
It is argued States are better suited to manage local safe drinking
projects. But then we about-face and force costly Davis-Bacon
requirements upon State contributions to the new revolving fund. The
Federal Government imposes costly Davis-Bacon long after Federal funds
are spent. Why? To promote safe drinking water?
My own State of Iowa has never had a prevailing wage law similar to
Davis-Bacon. But unlike the Federal Government, Iowa has to balance its
budget. It is required by Iowa's constitution. So, squandering
taxpayer's money like the Federal Government does is not acceptable
among many States like Iowa.
Therefore, I am confident that Iowa would oppose paying the inflated
costs this unprecedented Federal mandate imposes.
This is both a Federal money grab and a Federal power grab. It steals
more money from Federal and State taxpayers. And it steals the power
from the State. This provision strips State and local officials of
their powers.
States opposed to this expansion of Davis-Bacon could be ignored,
snubbed, and overruled by the Secretary of Labor.
The Federal Government must not impose its will upon State funded
programs. There is no justification for this power grab. Local
officials, not Federal bureaucrats, are better-suited to determine
local contract provisions funded by local revolving funds.
The costs of federally subsidized construction will dramatically rise
in urban areas and even more so in rural areas.
My State cannot afford to spend safe drinking water funds to finance
artificially high construction costs.
Davis-Bacon is simply a way to dig deeper and deeper into American
taxpayer pockets. It is another way for Congress to increase the burden
of Government on Americans.
It is another way for Congress to make certain that it controls the
hard-earned income of taxpayers instead of letting taxpayers spend
their own money or if the money is to be spent to accomplish the most
bang for taxpayer dollars.
I commend my friend from North Carolina for his work on this issue
and I urge my colleagues to join us in stripping this Davis-Bacon
provision from this bill.
I yield the floor.
Mr. NICKLES addressed the Chair.
The PRESIDING OFFICER. All time of the Senator from North Carolina
has expired.
Mr. BAUCUS. Mr. President, I yield 5 minutes to the Senator from
Ohio.
The PRESIDING OFFICER. The Senator from Ohio [Mr. Metzenbaum] is
recognized for 5 minutes.
Mr. METZENBAUM. Mr. President, I do not know any Member on the other
side of the aisle for whom I have more respect than my good friend from
Iowa. But when he suggests that the working people in this country are
special interests, I have to stand and say I strongly take issue with
that. These are average working Jacks and Jills who are working in the
construction industry making $14, $16, $18 an hour, maybe $20 an hour.
This amendment would repeal the prevailing wage protections of the
Davis-Bacon Act for any Government contracts funded by the Safe
Drinking Water Act.
We do not want to do that. We do not want to say to average working
people that you are supposed to work for less than the prevailing wage
in that area. That is all this amendment is about.
The proponents of this amendment have told you that workers do not
need these protections. They have told you this amendment will save
Federal dollars. So it sounds like a great idea. But the fact is you do
not save Federal dollars on the backs of the working people of this
country. At least I do not think we should.
We have heard these arguments over and over, time and time again
about this idea of saving money in this manner. We all know what is
really going on here. This amendment is really about stripping
longstanding labor protections away from American workers, for an
illusory purpose of saving tax dollars. It has no place in this
legislation.
We go through this same routine year after year. But the fact is, if
we have any real concern for American working people, we cannot even
consider adopting this amendment.
Let me explain briefly why workers need these protection. The Davis-
Bacon law requires Federal contractors to pay the prevailing wage in a
locality when performing work under a federally funded construction
contract. Congress enacted this law in 1931, 63 years ago, to codify a
simple public policy--that the Federal Government should not pay
substandard wages to American workers. Because of the Federal
Government's massive purchasing power, paying substandard wages could
undercut all other employers in a given area and drive wages down for
all workers.
That is not what I believe the U.S. Senate wants to bring about. The
Davis-Bacon Act is premised on the notion that private contractors
should not be permitted to use the shield of Federal contracts to
engage in wage-busting activities.
So Davis-Bacon stands for a principle that is eminently fair to both
Federal contractors and to their employees: just pay a fair wage, just
pay the prevailing wage in the community, nothing more. It does not ask
for $5 more than the prevailing wage. Just pay what the majority of
workers are earning for similar work in the area. What could possibly
be fairer than that?
Do not be fooled by the argument that America's construction workers
do not need these protections. In fact, they need these protections
more than ever.
The real value of their wages has been going down for years, due to
inflation.
Moreover, these workers typically do not work a full 52 weeks, due to
weather conditions, economic conditions, and the transient nature of
construction work. The compensation for working in one of the most
dangerous occupations in this country is not that high. If the
prevailing wage law is eliminated, this modest earnings level of
$22,000 to $23,000 will be slashed by low-wage contractors.
Ultimately, this is an issue of basic fairness.
Congress recognized that the Federal Government should encourage
competitive bidding for federally funded construction contracts. But
Congress also recognized that this competition should not come at the
expense of construction industry workers.
Moreover, Federal dollars raised by taxing the working men and women
of this country should not be used to force down their wages. We have
to stand here this afternoon to protect the principle of fairness that
has served us well for 63 years. We have consistently rejected efforts
to undermine or repeal these protections in the past. We should reject
this amendment as well.
Mr. President, I yield the remainder of my time.
Mr. CHAFEE addressed the Chair.
The PRESIDING OFFICER. The Senator from Montana has one minute and 40
seconds.
The Senator from Rhode Island.
Mr. CHAFEE. Mr. President, I ask the proponents of the amendment be
given 4 additional minutes. That will push back the 5:30 vote a little
bit.
Mr. BAUCUS. Mr. President, I might add I think it would be more fair
to allocate it evenly, like say 2 and 2.
Mr. CHAFEE. That is pretty short.
Mr. BAUCUS. Three and three.
The PRESIDING OFFICER. Without objection, each side is granted an
additional 3 minutes.
The Senator from Oklahoma is recognized.
Mr. NICKLES. Mr. President, I wish to thank my colleagues from
Montana and Rhode Island for their courtesy.
I also wish to compliment my friend and colleague, Senator
Metzenbaum. I have had the pleasure of debating him on this issue
several times.
I also wish to compliment my friend and colleague, Senator Faircloth,
for his amendment. I think it is an outstanding amendment. I appreciate
where he is coming from--the private sector, the era that believes that
individuals and businesses know how to set labor rates better than the
Federal Government. He happens to be right.
My friend from Ohio said, well, he believes in keeping the law as it
is. I am looking at this bill before us. This does not keep the law as
it is. As a matter of fact, this expands Davis-Bacon. It goes well
beyond any scope of the original passage of Davis-Bacon, because it
says that fair labor standards--or ``the administrator will have
prevailing wage rates provided under this part including any assistance
derived from repayments to the State loan fund.'' That is all State
money.
So what we are doing is expanding the Federal mandate of Davis-Bacon,
and that mandates high labor rates to the States. It is an unfunded
State mandate. States are going to be saying: Wait a minute, we have
paid into this fund; that is our money, but you are mandating that we
have the Federal Government set the labor rates on these projects when
we are spending our own money. That is not right.
In many cases, you are talking about wage rates far in excess of what
is normal, standard, or what somebody might be earning when they are
working on a private construction project. So if it is a Federal
construction project, it may cost 50 percent more or 20 percent more.
Those labor rates are going to be determined by the Secretary of Labor,
using some survey instead of the private sector between employer and
employee who know what that wage should be.
So, Mr. President, this bill is a massive expansion of an unfunded
mandate on States because it provides for prevailing wage rates
including any assistance derived from repayments to the State loan
fund.
We are going to spend a lot of money in this bill--over a billion
dollars. All that is covered by Davis-Bacon, under the revolving loan
funds, which is $1 billion. Where the States have their own money, they
should not be mandated to be paying exorbitant labor rates. Let them
decide. Nineteen States have exemption from Davis-Bacon. We should not
tell them they have to pay prevailing wage rates.
This is an expansion of present law, and it should not happen. We
should not be mandating States, counties, cities, and rural water
districts, high labor rates, and that is what we are doing.
Senator Faircloth has an outstanding amendment. I urge my colleagues
to support it.
Mr. BAUCUS. Mr. President, essentially, very clearly, we have already
debated this issue many times. The provisions of the bill apply to the
same--the same provisions currently apply to the Clean Water Act
revolving loan fund and to the Safe Drinking Water revolving loan fund.
What is sauce for the goose is sauce for the gander. There are all
kinds of studies that Davis-Bacon adds to the costs of construction,
and it does not add to the cost of construction. A lot of studies show,
frankly, that the provisions of Davis-Bacon providing for the
prevailing wage actually reduce the cost of construction because of
fewer delays. There is a more uniform application of the contract,
fewer cost overruns, generally, sturdier construction.
In the long haul, many studies show that the prevailing wage
provision tends to not increase costs in a project, but actually
reduces them. The short answer is that this is an issue that has been
around a long time, and all Senators are very familiar with this issue.
The committee did consider this amendment in committee. It was rejected
in committee by a vote, I think, of 11-6, and it was the same
amendment.
I strongly urge Senators--just as members of the committee did not--
to not adopt the amendment.
Mr. CHAFEE. Mr. President, I hope the Senate will adopt the amendment
offered by the Senator from North Carolina. This bill establishes a
State revolving loan fund program to make it possible for small
drinking water systems to comply with the requirements of the Safe
Drinking Water Act.
This is a loan fund, not a grant program. Drinking water systems can
borrow money. But they must pay it back. Ultimately, it is local
revenue that pays for compliance. The Federal dollars committed to
these loan funds is just seed money. Does it make sense to require
small communities who are struggling to meet the requirements of the
Safe Drinking Water Act to spend even more to meet Davis-Bacon
requirements that apply to a loan program? No, it does not.
The theory of a revolving fund is that some assistance is provided by
lowering interest rates on the loans. Small communities have difficulty
borrowing in the municipal bond market. The SRF's give them a window
for a loan at interest rates more can afford.
But not if you pile the Davis-Bacon requirements onto the loan. A
modest estimate of the impact is a 1.5-percent increase in the average
cost of construction projects that are required to pay wages at Davis-
Bacon rates. Many estimates of the cost impact are much higher. But
even at 1.5-percent, this requirement can have a large impact on the
attractiveness of this SRF program for small communities.
We have an SRF program in the Clean Water Act. Interest rates have
averaged 2.5 percent below market rates. You can see that if Davis
Bacon increases costs by just 1.5 percent--and that is the lowest
estimate--it eats up most of the advantages of this program. In fact,
most large cities have chosen not to participate in the Clean Water SRF
because of the Davis-Bacon and other similar cost increasing strings
that go with those loans.
So, Mr. President, I think this Davis-Bacon requirement undermines
the whole purpose of the SRF--access to low interest loan funds--and I
would urge the Senate to support the Faircloth amendment and delete the
Davis-Bacon requirement from this new program.
Mr. President, I point out also, as the Senator from Oklahoma noted,
this is an enlargement of Davis-Bacon. This is not carrying on some law
that has been there for 65 years. This is a broadening of the law.
I think we are ready to vote.
Mr. BAUCUS. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. BAUCUS. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BAUCUS. Mr. President, I think we are ready to yield back our
time on the debate on the amendment offered by the Senator from North
Carolina. I assume that the time on the other side has been used up,
and we are ready to proceed to a vote.
The PRESIDING OFFICER. Under the order, the question is on agreeing
to the amendment.
Mr. KOHL. Mr. President, I rise in opposition to the amendment of the
Senator from New Hampshire on unfunded mandates, and I do so as a
cosponsor of S. 933, which is Senator Kempthorne's Community Regulatory
Relief Act. When I cosponsored that legislation, I did so because I
believed that Congress does not give enough consideration to the costs
it imposes on communities when it passes legislation. We debate the
merits of each piece of legislation individually, but rarely do we
consider the cumulative costs we impose on the communities.
I cosponsored S. 933 because I believe that we need to be taking a
comprehensive approach in our efforts to rein in the costs we impose on
the communities in our States. We should not, however, agree to
piecemeal approaches to fix this problem. Mr. President, I believe that
the Gregg amendment represents such a piecemeal, and therefore
inappropriate, effort to address this matter.
Further, I believe that the unfunded mandate concept applied in a
piecemeal manner to the Safe Drinking Water Act results in some
potentially perverse conclusions. If we pass this amendment, we are
essentially giving carte blanche authority to local officials to decide
whether or not to enforce drinking water standards. There is no
explanation in this amendment of exactly how it will determine what is
funded and what is not funded. Essentially, this bill is a lawyer's
dream come true, because as vague as the language of this amendment is,
it would be very easy to construct a legal argument that any drinking
water regulation was not fully funded.
Mr. President, when I cosponsored the Kempthorne bill, I had no
intention of jeopardizing the life and health of the citizens of my
State. In light of the cryptosporidium outbreak that occurred in
Milwaukee in April of 1993, I think we are all fully cognizant that the
quality of our drinking water is directly related to human health and
safety. If we have concerns about specific drinking water standards,
let's debate those. But let's not gut the law that is charged with
ensuring safe drinking water to the families in our States.
It is my understanding that discussions are currently taking place
between Senator Glenn, the chairman of the Senate Government Affairs
Committee, and Senator Kempthorne, the sponsor of S. 933, regarding the
appropriate manner to proceed in addressing the unfunded mandate
concerns. It is also my understanding that the desire is to have this
matter addressed in a comprehensive approach. For this reason, and the
other reasons stated above, I urge my colleagues to oppose the
amendment of the Senator from New Hampshire.
Mr. HATFIELD. Mr. President, I rise in support of the Gregg
amendment. I support this amendment because, like many Senators, I have
heard from hundreds of citizens in my State about the burdens of
mandates, and I agree with Senator Gregg that the practice of passing
the responsibility for Federal priorities to State and local government
must stop.
However, I would like to note that the Gregg amendment might be
applied to the operations and maintenance of local public water
systems, and I believe this may take the ``unfunded mandates'' argument
a step too far. As with many other programs, providing safe drinking
water is a shared responsibility among the Federal, State and local
governments. We must strike a balance between guaranteeing that all
people in this country have access to safe drinking water and allowing
local communities to set local priorities. In general, daily operation
and maintenance costs--including testing for contaminants--should be
the responsibility of the local community and should be funded locally.
Despite my misgivings about its scope, my vote in favor of the
amendment offered by my friend from New Hampshire, Senator Gregg, is a
clear statement of my support for an end to the practice of unfunded
Federal mandates.
Mr. BAUCUS. Mr. President, I ask for the regular order. Which
amendment will be voted on first?
The PRESIDING OFFICER. The amendment of the Senator from New
Hampshire.
Mr. BAUCUS. Mr. President, I move to table the amendment of the
Senator from New Hampshire and ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays are ordered, and the clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. FORD. I announce that the Senator from Alabama [Mr. Shelby] is
absent because of illness.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 56, nays 43, as follows:

[Rollcall Vote No. 115 Leg.]

YEAS--56

Akaka
Baucus
Biden
Bingaman
Boren
Boxer
Bradley
Bryan
Bumpers
Byrd
Campbell
Chafee
Cohen
Conrad
Daschle
DeConcini
Dodd
Dorgan
Durenberger
Exon
Feingold
Feinstein
Ford
Glenn
Graham
Harkin
Hollings
Inouye
Jeffords
Kennedy
Kerrey
Kerry
Kohl
Lautenberg
Leahy
Levin
Lieberman
Metzenbaum
Mikulski
Mitchell
Moseley-Braun
Moynihan
Murray
Packwood
Pell
Pryor
Reid
Riegle
Robb
Rockefeller
Roth
Sarbanes
Simon
Warner
Wellstone
Wofford

NAYS--43

Bennett
Bond
Breaux
Brown
Burns
Coats
Cochran
Coverdell
Craig
D'Amato
Danforth
Dole
Domenici
Faircloth
Gorton
Gramm
Grassley
Gregg
Hatch
Hatfield
Heflin
Helms
Hutchison
Johnston
Kassebaum
Kempthorne
Lott
Lugar
Mack
Mathews
McCain
McConnell
Murkowski
Nickles
Nunn
Pressler
Sasser
Simpson
Smith
Specter
Stevens
Thurmond
Wallop

NOT VOTING--1

Shelby

So the motion to lay on the table the amendment (No. 1712) was agreed
to.
The PRESIDING OFFICER. The Senator from Montana.
Mr. BAUCUS. Mr. President, what is pending business?
The PRESIDING OFFICER. The pending business is the amendment of the
Senator from North Carolina.
Mr. BAUCUS. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The question is on agreeing to the amendment
of the Senator from North Carolina.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. FORD. I announce that the Senator from Alabama [Mr. Shelby] is
absent because of illness.
The PRESIDING OFFICER. (Ms. Mikulski). Are there any other Senators
in the Chamber who desire to vote?
The result was announced--yeas 39, nays 60, as follows:

[Rollcall Vote No. 116 Leg.]

YEAS--39

Bennett
Bond
Boren
Brown
Bumpers
Chafee
Coats
Cochran
Cohen
Coverdell
Craig
Danforth
Dole
Domenici
Faircloth
Gorton
Gramm
Grassley
Gregg
Hatch
Helms
Hutchison
Kassebaum
Kempthorne
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Pressler
Pryor
Roth
Simpson
Smith
Thurmond
Wallop
Warner

NAYS--60

Akaka
Baucus
Biden
Bingaman
Boxer
Bradley
Breaux
Bryan
Burns
Byrd
Campbell
Conrad
D'Amato
Daschle
DeConcini
Dodd
Dorgan
Durenberger
Exon
Feingold
Feinstein
Ford
Glenn
Graham
Harkin
Hatfield
Heflin
Hollings
Inouye
Jeffords
Johnston
Kennedy
Kerrey
Kerry
Kohl
Lautenberg
Leahy
Levin
Lieberman
Mathews
Metzenbaum
Mikulski
Mitchell
Moseley-Braun
Moynihan
Murray
Nunn
Packwood
Pell
Reid
Riegle
Robb
Rockefeller
Sarbanes
Sasser
Simon
Specter
Stevens
Wellstone
Wofford

NOT VOTING--1

Shelby

So the amendment (No. 1714 was rejected.
Mr. KENNEDY. Madam President, I move to reconsider the vote.
Mr. FORD. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. WALLOP addressed the Chair.

____________________