[Congressional Record Volume 140, Number 62 (Wednesday, May 18, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: May 18, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
               SAFE DRINKING WATER ACT AMENDMENTS OF 1994

  The Senate continued with the consideration of the bill.
  The PRESIDING OFFICER. The Senate will return to consideration of S. 
2019, the Safe Drinking Water Act.
  The pending question is the amendment of the Senator from Louisiana.
  The Chair recognizes the majority leader, the Senator from Maine.
  Mr. MITCHELL. Madam President, I rise in strong support of 
legislation to reauthorize and improve the Safe Drinking Water Act.
  I want to commend Senator Baucus, chairman of the Environment and 
Public Works Committee, and Senator Chafee, the ranking minority member 
of the committee, for their determined effort to develop fair and 
balanced legislation to reauthorize the Nation's drinking water 
program.
  Reauthorization of the Safe Drinking Water Act is a high priority for 
communities all across the country and in my home State of Maine. Over 
the past several years, I have met with many representatives of large 
and small water systems in Maine. The vast majority of people who run 
water systems in this country are committed to providing the safest 
possible drinking water.
  Unfortunately, many State and local officials in Maine and around the 
country have lost faith in the drinking water program. They are not 
convinced that the many new requirements they face are truly needed to 
protect public health. They are convinced that the program costs too 
much. they want the Congress to act promptly to amend and improve the 
act.
  Public confidence in the quality of drinking water has also declined. 
Reports of serious illness and death as a result of contaminants in 
drinking water in Milwaukee have raised public concern.
  Here in Washington DC, hundreds of thousands of people boiled water 
for several days following reports of possible contamination.
  The legislation being considered today starts the long process to 
rebuilding the confidence of State and local officials and the public 
in the drinking water program.
  Everyone agrees that safe drinking water should be available to every 
American.
  In the 1986 amendments to the act, the congress responded to the 
failure, by the EPA to develop and implement drinking water standards 
and directed EPA to take aggressive steps to address threats to public 
health from contaminants in drinking water.
  We know today that, while EPA responded to the 1986 law, we failed to 
establish the foundation of cooperation, understanding, and trust among 
local, State, and Federal officials necessary for successful 
implementation of a national drinking water program.
  The bill before us responds to many of the concerns of municipal and 
State officials while preserving and enhancing the important public 
health protections of the current act.
  A first, essential step in reauthorizing the drinking water program 
is to adopt President Clinton's proposal to use $1 billion a year to 
establish State loan funds to assist communities in financing of 
drinking water treatment and related projects.
  Many local and State officials have rightly complained that the 
Federal Government sometime asks other levels of government to address 
important national policy objectives without becoming a partner in 
financing the steps needed to accomplish those objectives.
  The Safe Drinking Water Act is often cited as an example of a Federal 
law imposing unfunded Federal mandates.
  By enacting the President's proposal, we will be applying to the 
drinking water programs the principle of Federal, State, and local 
partnership which has served which has served us well in financing the 
cleanup of rivers and streams under the Clean Water Act.
  The bill reported by the Senate Environment and Public Works 
Committee includes the President's proposal for a new State loan fund.
  The bill authorizes $600 million in 1994 for the new State loan funds 
and $1 billion in fiscal year 1995 through 2000. States are to provide 
a 20-percent match to this funding. Total funding provided under the 
bill is almost $8 billion.
  The EPA has estimated that the capital cost of complying with 
drinking water regulations is about $8 billion. In very general terms, 
the bill provides financial assistance at a level comparable to the 
costs of major projects to assure that water is safe to drink. The bill 
does not create an unfunded mandate. It funds an existing mandate.
  More importantly, the bill recognizes the special financial problems 
faced by small communities. Because of limited economies of scale, 
customers of small drinking water systems pay the highest rates to 
comply with drinking water treatment requirements.
  The new drinking water loan fund proposed in the committee reported 
bill gives top priority to protecting customers of small systems from 
sometimes astronomical rate increases.
  States are authorized to use 30 percent of funds to forgive repayment 
of loans for communities which meet affordability guidelines adopted by 
a State.
  States are also given new authority to extend repayment schedules 
beyond the otherwise applicable schedule of 20 years where an extension 
would help a disadvantaged community keep rates under control.
  For example, under the bill, the State of Maine will develop 
guidelines for determining when a drinking water treatment project is 
not affordable for a community. The State might decide that rates of 
more than 1 percent of median household income are excessive. A 
community proposing to build a $1 million dollar treatment facility 
might find that, even with a low interest loan, the project will 
increase rates to 1.5 percent of median household income. The State 
would then give the community a $1 million loan at zero interest and 
then forgive repayment of principal or extend loan repayment periods as 
needed to keep household rates below 1 percent of median household 
income.
  We have heard lots of rhetoric over the past several months about the 
Federal Government not being a responsible partner with other 
governments in funding essential public services like safe drinking 
water.
  Some have called for dramatically reducing our commitment to 
protection of public health and the environment. This bill rejects the 
notion that we should retreat from essential public health protection.
  At the same time, it recognizes the important role the Federal 
Government must play in assisting communities, especially the most 
needy communities, in financing projects to assure safe drinking water.
  While financial assistance to communities is essential for reform of 
the drinking water program, financial assistance alone is not 
sufficient to restore the confidence of the public and State and local 
officials in the national drinking water program.
  Rebuilding confidence in the drinking water program requires that we 
address three major issues--the problems faced by small communities; 
the costs of drinking water monitoring; and the process for setting 
enforceable drinking water standards. The bill before us addresses each 
of these issues in a balanced, responsible manner.
  One of the most difficult problems we face in implementing the 
national drinking water program is that drinking water quality that is 
generally affordable for people served by big systems is very expensive 
for people served by small systems because of limited economies of 
scale.
  The bill addresses this fundamental problem by directing the EPA to 
identify small system technology which is affordable for systems of 
under 10,000 persons or for even smaller systems.
  Small system technologies are available to communities only based on 
approval by the State of a new small system variance provided for in 
the bill. Small system variances are to be provided only after the 
State has determined that no other management or treatment option is 
available. States are not to grant small system variances if the State 
finds that the community can afford to comply with a drinking water 
standard. States are not to grant small system variances if an 
alternative source of water is available. And, States are not to grant 
small system variances if the system can be restructured or 
consolidated with another system to assure its long-term viability.
  Many communities around the country are concerned about the high cost 
of monitoring for drinking water contaminants under regulations 
developed by the EPA. The bill before us today provides substantial 
relief from monitoring costs while maintaining sufficient monitoring to 
assure the protection of public health.
  A key monitoring provision of the bill provides for substantial 
reduction in monitoring costs for small communities which do not detect 
a contaminant in initial tests. This provision could reduce these costs 
for these communities by up to 75 percent.
  The bill also provides that States may submit to EPA proposals to 
tailor monitoring requirements to meet the specific water quality 
circumstances in the State. This new authority will assure that 
drinking water systems are not required to conduct monitoring for 
contaminants that are not a threat to public health in the State.
  One of the most hotly debated issues related to the Safe Drinking 
Water Act is the process for selection and regulation of contaminants 
in drinking water. After considerable discussion and debate the 
committee developed a legislative proposal which is a sound and 
responsible compromise. The bill will maintain the high standard of 
public health protection which we all expect but will also allow the 
EPA Administrator greater flexibility in selection of contaminants for 
regulation and recognizing opportunities for reducing treatment costs.
  The bill revises the process for selecting contaminants to be 
regulated under the act. It eliminates the requirement for the 
regulation of 25 new contaminants every 3 years. It assures that the 
EPA will use sound science and high quality data in determining which 
contaminants pose the greatest health threat and need to be regulated.
  In addition the bill reforms the process for actually setting 
enforceable drinking water standards.
  The basic policy of the current law is retained, but the EPA 
Administrator is given new authority to recognize cost saving 
opportunities in very specific circumstances.
  Under the current law, EPA sets the standard at the concentration 
level which is as close to the no adverse effect level as is feasible, 
taking technology and cost into account. The Administrator is to 
continue to set standards in this manner. However, if the Administrator 
determines that, for a cancer causing contaminant, a treatment 
technology exists which provides substantial cost savings, while at the 
same time providing public health protection which is not significantly 
different from the level which would apply under the law, the 
Administrator may set the standard at the level which can be attained 
be the alternative technology. This authority is discretionary and to 
be used only in cases where the Administrator judges it to be 
appropriate.
  The committee considered applying this same basic policy to the 
setting of standards for contaminants other than cancer causing 
substances. There is substantial concern, however, that there is not an 
adequate scientific basis for changing the approach to standard setting 
provided in current law for non-cancer causing substances.
  For example, it is not now possible to develop a probabilistic risk 
estimate for noncarcinogens. Another problem is how to account for the 
different health effects of a contaminant or group of contaminants. A 
single contaminant may cause nervous system effects and kidney damage.
  Madam President, I ask unanimous consent that a letter from EPA 
Administrator Carol Browner and a memorandum from Assistant 
Administrator Lynn Goldman addressing these issues be printed in the 
Record at the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 2)
  Mr. MITCHELL. Madam President, in light of this concern for revising 
the standard setting process for noncancer causing substances, the 
manager's amendment to the bill provides for a study by the National 
Academy of Sciences. The Academy is to assess whether there are sound 
scientific practices which would allow the Administrator to make 
informed and responsible judgments about revising concentration levels 
for noncancer causing substances in the manner proposed for cancer 
causing substances.
  If the Academy finds that there are sound scientific practices which 
would allow informed and responsible judgments about revising 
concentration levels for noncancer causing substances and makes 
recommendations regarding such practices to the Administrator, the 
Administrator may publish in the Federal Register scientific guidelines 
addressing this topic.
  After such guidelines are published, the Administrator may follow the 
guidelines in setting standards for noncancer causing substances 
without further approval from the Congress.
  I am confident that the standard setting policies we have proposed 
will assure continued protection of public health while giving the EPA 
Administrator the discretion to recognize opportunities to reduce costs 
for communities and ratepayers.
  I am especially pleased that the bill includes several provisions 
which are important to my home State of Maine.
  Radon is a naturally occurring gas which is a known cause of lung 
cancer. Many water systems in Maine draw drinking water from ground 
water and many of these ground water wells have high levels of radon. 
The high levels of radon in Maine groundwater are probably the most 
significant threat to public health associated with drinking water in 
the State.
  Unfortunately, the development of a radon in drinking water standard 
has been delayed for several years by substantial scientific 
controversy and the complexity of this issue.
  EPA has proposed to regulate radon in drinking water on the basis of 
the health effects from both ingestion and inhalation. The proposed 
standard, however, provides for reducing the risk from radon in 
drinking water to a level that is less than the risk resulting from 
exposure to radon to outdoor air.
  In other words, drinking water systems would have to remove enough 
radon from water to keep radon in the air in a home well below the 
level that exists in the air outside the home.
  The bill reported by the committee responds to this concern by 
allowing States and water systems the option of meeting a radon in 
water standard developed under current law or meeting an alternative 
standard which has a health risk equivalent to the risk associated with 
outdoor air.
  All drinking water systems in a State could meet the alternative 
standard if the State is implementing a program to reduce exposure to 
radon in indoor air. Even if a State is not implementing a radon in 
indoor air program, a drinking water system could comply with the 
alternative standard by implementing simple steps to reduce radon in 
indoor air.
  This innovative approach to the unique problems posed by radon in 
drinking water will result in balanced, responsible programs for 
control of radon in both air and water and will result in prompt action 
to address this significant health threat.
  Many Maine drinking water systems rely on surface water sources. 
Because of the cold climate and rural character of much of the State, 
surface water is a clean and reliable source of drinking water 
throughout Maine.
  The 1986 amendments to the Safe Drinking Water Act directed EPA to 
develop regulations requiring disinfection and filtration to remove 
microbiological organisms from surface water.
  Many Maine water systems have installed treatment for microbiological 
contaminants at a substantial cost. The costs of this treatment would 
have been greater except that the law provided for waivers of 
filtration requirements in the case of very clean source water. Over a 
dozen major drinking water systems in Maine qualified for waivers.
  The cost of surface water treatment is highest for small systems, 
especially small noncommunity systems such as campgrounds and summer 
camps. Many of these small systems will need to comply with the surface 
water treatment regulations over the next several years.
  The bill specifically provides that the EPA is to identify in 
regulations various filtration technologies which are feasible and 
affordable for small systems. In addition, while small system variances 
are not available for these filtration technologies, the State may 
grant extensions of the compliance periods as needed to allow time for 
small systems to identify and implement affordable filtration 
technologies.
  In cases where a system cannot afford the small system technology, 
the exemption provision of the bill provides authority to delay 
compliance for a limited period until funding under the State loan 
funds becomes available.
  In addition, the bill provides authority for a State to refinance a 
project already constructed to meet the requirements of the 1986 
amendments to the Safe Drinking Water Act. This authority is vital to a 
State like Maine where many communities have undertaken major projects 
to comply with new drinking water regulations, such as the surface 
water treatment rule.
  Without this authority, communities which complied with the law in 
good faith and constructed projects on time without Federal assistance 
will be at a disadvantage with respect to Federal assistance compared 
to communities which have been slower to comply.
  All the provisions of the bill will help drinking water systems in 
Maine provide safe water at reasonable cost. The provisions of the bill 
related to radon, surface water treatment, and funding of past projects 
respond directly to two of the most difficult drinking water issues in 
the State in a constructive and balanced manner.
  I am pleased to report that the Maine Rural Water Association and the 
Maine Water Utilities Associations both support the bill.
  There are many other important provisions of this legislation. It 
provides new authority to assure sufficient funding for State 
management of drinking water programs. It encourages drinking water 
systems to invest in protection of drinking water supplies from both 
ground water and surface water. It streamlines and clarifies 
enforcement authority and practices. And, it assures that the public 
will receive timely and understandable notice of violations of drinking 
water standards and related requirements.
  This bill is important for public health and it is important to 
municipal officials across the country and I urge my colleagues to 
support it.
  Several of the major newspapers in my home State of Maine have 
recently published editorials in support of the bill reported by the 
committee and opposing proposals to weaken the act. I ask unanimous 
consent that these editorials be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 2.)

                               Exhibit 1


                              Environmental Protection Agency,

                                   Washington, DC, April 28, 1994.
     Hon. Max Baucus,
     Chairman, Committee on Environment and Public Works, U.S. 
         Senate, Washington, DC.
       Dear Mr. Chairman: I want to express my appreciation for 
     your leadership to advance legislation to reform the Safe 
     Drinking Water Act consistent with the Administration's 
     principles. S. 2019 accomplishes our shared goal of improving 
     public health protection while reducing unnecessary 
     regulatory burdens on the nation's water suppliers.
       I also would like to commend you for your open and active 
     approach to the negotiations involved in bringing the bill to 
     the Senate floor. This testifies to your commitment to 
     respond directly to the concerns of the Administration and 
     the many organizations that regulate, manage and supply 
     drinking water to the American people.
       I am concerned, however, about proposals that could 
     significantly weaken the health protection measures, 
     especially the standard setting provisions, that are 
     fundamental to the Safe Drinking Water Act. The American 
     people expect and deserve the highest quality water in the 
     world when they turn on their faucets for drinking, bathing 
     or cooking. We cannot compromise their trust of their health.
       The legislation reported unanimously by the Committee on 
     Environment and Public Works encompasses many of the 
     Administration's recommendations--and many of those advanced 
     by a coalition of state and local organizations--by focusing 
     on the challenges confronting the nation's water suppliers, 
     particularly the small ones. Your bill establishes a new 
     state revolving loan program to fund much-needed 
     infrastructure improvements, it addresses monitoring and 
     compliance schedules, it provides low-cost technology and 
     flexibility for small systems, and it eliminates the current 
     mandate that we regulate a fixed number of contaminants per 
     year regardless of the benefits to public health. These are 
     precisely the types of reforms that will reduce the 
     regulatory and financial burdens on water systems without 
     compromising public health.
       I know you share the President's goal of securing a 
     reformed Safe Drinking Water Act during this session of 
     Congress. This goal, however, cannot be accomplished at the 
     expense of public health. As you know, I will continue to 
     work with you and will not hesitate to express my concerns if 
     subsequent amendments adversely affect the specific drinking 
     water health protection measures essential to the 
     legislation.
       Public health protection requires a balance between new 
     flexibility and regulatory reforms on the one side, and 
     appropriate safeguards on the other. These basic safeguards 
     must include new efforts to prevent pollution from entering 
     drinking water sources in the first instance. They also must 
     assure that the nation's water suppliers meet basic tests to 
     reliably deliver high quality water to their customers, 
     including ensuring that the water systems we invest in are 
     economically and administratively viable.
       I am confident that with your continued leadership the 
     Senate bill will strike this vital balance. I look forward to 
     continuing to work with you and your colleagues as the 
     legislation proceeds.
           Sincerely,
                                                 Carol M. Browner.
                                  ____

         U.S. Environmental Protection Agency, Office of 
           Prevention, Pesticides and Toxic Substances,
                                   Washington, DC, April 29, 1994.
     Subject: Proposed Amendments to the Safe Drinking Water Act.
     From: Lynn R. Goldman, M.D., Assistant Administrator.
     To: Robert Perciasepe, Assistant Administrator for Water.
       I have reviewed the language you sent to me and am very 
     concerned about the policy, science and public health issues 
     that it raises.
       For the sake of consistency with Administration policy, the 
     public health standard should be one to assure ``a reasonable 
     certainty of no harm.'' For cancer, this is equivalent to a 
     ``negligible risk'' standard, or a risk of about 110-6.
       The proposed standard in (B)(i)(II) of ``health risks * * * 
     not unreasonably increased'' from ``health risks at a level 
     that is feasible'' would be open to a number of 
     interpretations. This standard, coupled with the language in 
     (B)(ii) establishing a determination that is simply not 
     ``arbitrary and capricious,'' would result in a non-science 
     based, non-public health protective standard. Rather, it 
     appears that the goal of this approach is to achieve the 
     least public health protective measure for any given level of 
     feasibility. (For cancer, the EPA would be prohibited from 
     establishing more protective MCL even at equivalent costs!) 
     This proposed standard is not in accord with Administration 
     policy because it would not assure a reasonable certainty of 
     no harm.
       The ``clarification'' section, or proposed colloquy 
     language, is also problematic. The ``reference dose'' is the 
     Agency's scientists' best determination of a dose that gives 
     a ``reasonable certainty of no harm.'' Moving off the 
     reference dose to higher doses will decrease the certainty of 
     no harm.
       Further, the same level of certainty of no harm does not 
     exist within an order of magnitude (or factor of three above 
     or below--for each reference dose. Reference doses have 
     various levels of supporting data. They are for drastically 
     different health effects ranging from acute toxicity to 
     developmental/reproductive effects to chronic effects like 
     neurotoxicity. The level of uncertainty around such estimates 
     would be very much dependent on the uncertainty of the 
     underlying data.
       Although the proposed colloquy talks about uncertainty 
     around the reference dose, the proposed statutory language 
     indicates that the flexibility is around the level that is 
     feasible. This could be a higher level than the reference 
     dose. Depending on the health endpoint of concern, the dose 
     response curve at any point could be very ``flat'' or very 
     ``steep.'' Agency scientists must apply much scientific 
     judgement in establishing references doses and levels of 
     certainty around them and other points on the dose response 
     curve. This is a matter for peer review and evolving 
     scientific understanding.
       The proposed colloquy appears misleading when it states 
     that the proposed procedures will be equally protective of 
     public health. The proposed procedure will systematically 
     drive allowable doses upward, which may well result in a net 
     reduction in public health protection.
       The colloquy will tend to freeze scientific procedures at a 
     given point in time by legislating an issue that should be a 
     matter of scientific judgement, and that will change as our 
     knowledge grows. The appropriate way to develop scientific 
     procedures is through scientific effort, use of best 
     available information and peer review by groups such as the 
     Science Advisory Board (SAB) and National Research Council 
     (NRC), as the Agency has done in the past in developing its 
     reference dose procedure. Most recently, the NRC has released 
     a report that affirms EPA's procedures for cancer and non-
     cancer effects, while making recommendations for a number of 
     improvements. This is how our procedures should evolve, not 
     by statute.

                               Exhibit 2

               [From the Bangor Daily News, May 5, 1994]

                        Keep Cleaning the Water

       The cancer of water pollution was engendered by our abuse 
     of lakes, streams, rivers and oceans; it has thrived on our 
     half-hearted attempts to control it; and like any other 
     disease, it can kill us.--Sen. Edmund Muskie
       A generation after Congress passed substantial measures to 
     protect and improve the nation's waters, it will reconsider 
     the Clean Water Act and the Safe Drinking Water Act amid new 
     pressures not only on the water systems, but on the budgets 
     of those charged with protecting them.
       The paradox in the debate over the need to improve water 
     quality is that both sides can point to evidence to support 
     their cases. While as many as half the U.S. waterways have 
     yet to meet the 1972 goal of becoming ``fishable and 
     swimmable,'' municipalities find themselves saddled with 
     water-quality projects that cost tens of millions of dollars 
     but provide only incremental improvements for systems that by 
     most measures are already considered safe.
       The Safe Drinking Water Act emerges from the sensible idea 
     that Americans ought to be able to open a spigot and drink a 
     glass of water confident that it will not harm them. The 
     Centers for Disease Control and Prevention, however, offers 
     statistics from as recently as 1992 that show thousands of 
     people each year suffering ill effects from drinking tap 
     water. Now is not the time to weaken safe-drinking-water laws 
     through eliminating the need for public notice of unsafe 
     water systems or by lowering public health standards, as 
     amendments propose to do.
       Both acts share with other decrees that fly out of 
     Washington these days the onerous burden of unfunded 
     mandates: costly regulations imposed on state or local 
     governments without the funds to pay for them. Banning these 
     mandates, particularly those that seek to protect the 
     environment, is a popular notion in Washington, but the long-
     term cost of such a rule would be devastating to the 
     taxpayer.
       A law that would require Congress to fully fund all 
     environmental mandates is an invitation to states to reap 
     financial benefit through irresponsible enforcement of 
     environmental laws, knowing that, eventually, the rest of the 
     country would be forced to cover the cost of cleanup. The 
     situation would be akin to the savings-and-loan mess, in 
     which banks that acted recklessly had their excesses covered 
     by government-backed depositors insurance.
       A better plan in the Senate would create a revolving-loan 
     program for states to meet the mandates. Such a plan has been 
     proposed for the drinking-water act and would also be useful 
     in meeting clean-water regulations. Fines for noncompliance 
     with other environmental laws should help fund the program.
       The Senate is expected to consider the Safe Drinking Water 
     Act this week, and vote on the Clean Water Act sometime later 
     this month. Amendments to the latter could strengthen 
     wetlands protection laws, increase the fines for 
     noncompliance and attempt to reduce nonpoint source 
     pollution, which has become a prime target of 
     environmentalists as more obvious sources of pollution have 
     dried up.
       As it focuses on the Safe Drinking Water Act, the Senate 
     should view the current act as a successful start to 
     protecting this essential element of life. By giving 
     municipalities flexibility in meeting its goals and creating 
     funding sources for protection that will pay off in the long-
     term, the nation can maintain the vision that Sen. Muskie and 
     others created more than 20 years ago.
                                  ____


                    [From the Portland Press Herald]

             Safe Drinking Water Is Critical to All America

       Senators should hold the line this week against gutting 
     efforts.
       It is tragic that just as Americans were preparing to 
     celebrate Earth Day weekend, the environments sunshine 
     friends in Congress were preparing to demolish one of the 
     cornerstones of the environmental movement.
       The Safe Drinking Water Act was intended to protect one of 
     Americans' more basic environmental rights--the right to 
     clean, safe drinking water whereover they may live. For more 
     than two decades. It has mostly done that.
       In those instances where the act's protections failed, as 
     in the deaths of 104 people and the illnesses of 400,000 more 
     from contaminated water in Milwaukee last year, the need for 
     strengthening the act was clear.
       Instead of strengthening the act, however, which would be 
     the proper way to mark Earth Day, some in Congress want to 
     weaken it further. They are responding to complaints about 
     unfunded federal mandates and the costs of enforcement--valid 
     concerns, but ones that hardly should be addressed by 
     relaxing critical health protection standards.
       One good provision in the bill that will come to a Senate 
     vote this week, for instance, is creation of a revolving 
     billion-dollar state loan fund. The Clinton adminitration has 
     proposed other reforms, including a fund to help communities 
     pay for federally mandated improvements. Streamlining EPA 
     enforcement procedures also is possible without gutting the 
     act.
       An idea of what's being proposed by the act's critics may 
     be had by their desire to keep water problems secret. They 
     would eliminate the requirement that the public be notified 
     through the media of serious contamination of water supplies, 
     and leave it up to negotiation between the water industry and 
     the affected states.
       Unsafe drinking water is not a theoretical problem; it is 
     here and it is real. ``The problem is that millions of people 
     are drinking unsafe, unprotected water,'' says Jeanne 
     Bassett, New England field coordinator of the U.S. Public 
     Interest Research Group. She cites 1986-92 figures from the 
     Centers for Disease Control that show nearly 35,000 people 
     becoming ill from contaminated water in 33 states, and 133 
     violations of safe drinking water standards in Maine.
       This isn't the time to be weakening those standards. 
     Senators should stand firm against the Domenici-Boren-
     Hatfield amendments that would do just that, else the title 
     of the ``Safe Drinking Water Act'' will be a bitter mockery.

  Mr. MITCHELL. Madam President, I urge my colleagues to join me in 
supporting this important legislation.
  I thank my colleagues for their courtesy.
  Mr. JOHNSTON and Mr. KERRY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. JOHNSTON. Madam President, will the majority leader yield? Do I 
understand we are not having votes until after 3 o'clock?
  Mr. MITCHELL. Madam President, that is correct.
  Mr. BAUCUS and Mr. KERRY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. BAUCUS. Madam President, I wish to thank the majority leader for 
his statement. He has been a very strong supporter of environmental 
issues generally--strong, progressive, balanced environmental 
legislation, in particular a very strong supporter of the Safe Drinking 
Water Act. He is a member of the committee and given very valuable 
assistance on the committee. He has helped very much with respect to 
scheduling and timing to assure that we not only get the bill up for 
consideration at the appropriate time but in a good, strong, solid 
fashion so that agreements can be worked out to better enhance the 
passage of a good, strong Safe Drinking Water Act.
  I very much thank the majority leader for his very fine leadership on 
this issue.
  Mr. MITCHELL. Madam President, I am grateful to my colleague for his 
kind remarks, but every Member of the Senate knows that the person who 
has really done the work on this bill has been Senator Baucus, along 
with Senator Chafee. I am honored to serve on the committee under his 
leadership, and I think it is a good bill, the result of a lot of time 
and effort, and I hope very much that we can pass it with a very large 
majority today.
  Mr. JOHNSTON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. JOHNSTON. Madam President, I move to temporarily lay aside the 
pending amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KERRY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KERRY. Madam President, I understand the Senator from California 
wanted to proceed with an amendment.
  If I could ask the distinguished manager of the bill, it is my 
understanding, Madam President, that the Senator from California had an 
amendment which was going to be accepted.
  Mr. BAUCUS. That is correct.
  Mr. KERRY. I would like to ask unanimous consent that the Senator 
from California be permitted to proceed with her amendment; after the 
acceptance of that amendment, I be permitted to proceed as if in 
morning business for a period of time.
  Mr. BAUCUS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. BAUCUS. Reserving the right to object, can the Senator give us a 
sense of how long he wishes to speak?
  Mr. KERRY. I honestly do not know what the full time is going to be 
but it is not----
  Mr. BAUCUS. Will the Senator agree to 10 minutes?
  Mr. KERRY. I cannot do it in 10 minutes.
  Mr. BAUCUS. Madam President, the problem is we have 40 to 50 
amendments that could be offered and under the consent agreement each 
of those amendments must be offered by 3 o'clock today.
  Mr. KERRY. I understand that.
  Mr. BAUCUS. We are on the Safe Drinking Water Act, and I just think 
in comity to other Senators, in deference to other Senators, we should 
be sure we have as much time as possible so they can offer their 
amendments before 3 o'clock today. So if the Senator could agree to 
limit his remarks, I think that therefore we would be in a good 
position to accommodate other Senators.
  Mr. KERRY. Let me just say to my friend, I was in the very position 
he is in with the Senator from New York not long ago. I understand it. 
The Senator from New Jersey, the Senator from Montana, and others have 
spoken on the subject earlier and because of the timeframe of the 
special session I was unable to get in at that point in time. I wanted 
to be able to have the commensurate amount of time they had off the 
bill on this very subject.
  Mr. BAUCUS. Madam President, again reserving the right to object, it 
is true that the Senator from New Jersey spoke on this as in morning 
business. But that was at a time during morning business where no 
amendments were pending, and when I was imploring Senators to come to 
the floor to offer amendments. We are now in a different posture. We 
now have two amendments pending and potentially a third one which we 
will accept. And the Senator from New York wishes to speak. We do not 
have a lot of time left. We are in a different timeframe.
  I want to accommodate the Senator. But if he could give us an 
assurance to cut his remarks down to, let us say, at the outset 15 
minutes. Otherwise, I am afraid I would be constrained to object.
  Mr. KERRY. Madam President, as the Senator well knows, this is a 
subject that is difficult to explain in that period of time.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. KERRY. 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. KERRY. Madam President, it is my understanding that the manager 
has a couple of people who wanted to proceed with amendments 
immediately. I will not stand in the way of that, particularly since I 
think they are agreed on.
  I ask unanimous consent that at least after their amendments and we 
have a chance to come back to revisit where we are in time if I could 
have the floor in order to do that without again trying to disrupt the 
process.
  Mr. BAUCUS. Madam President, again, I think in fairness to other 
Senators, we need an indication of the limit of time.
  Mr. KERRY. Right; but I would like to see where we are at that point 
in time, if I could have the right to come back to make a decision as 
to where we are. That is all I am asking.
  Mr. BAUCUS. Madam President, we are getting kind of tied up here in a 
parliamentary knot. I suggest to the Senator from Massachusetts that we 
proceed, and temporarily set the two amendments by the Senator from 
Louisiana aside; that we go to the amendment of the Senator from 
California, and I think the Senator from New York has a small matter he 
wishes to dispense with. I give assurance to the Senator from 
Massachusetts that during the interim I will try to work out an 
accommodation with the Senator, and certainly I would not be 
constrained to not let him seek the floor. I think during that time we 
can work it out.
  Mr. CHAFEE. Madam President, I think that the Senator from Louisiana 
is going to be ready to go with his amendment. As I understand, we can 
take the risk assessment amendment after the two amendments that are 
going to be accepted.
  Mr. JOHNSTON. Yes. I would like to go ahead and get the risk 
assessment done. I understand it is agreed upon.
  Mr. CHAFEE. It is agreed upon to have a time limit.
  Mr. JOHNSTON. Yes.
  Mr. BAUCUS. Madam President, I suggest regular order.
  Mrs. BOXER addressed the Chair.
  The PRESIDING OFFICER. The Senator from California.


                           Amendment No. 1723

  Mrs. BOXER. Madam President, I send an amendment to the desk, and I 
ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from California [Mrs. Boxer], for herself and 
     Mr. Bradley, proposes an amendment numbered 1723.

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

       On page 86, line 20, insert after paragraph (B) the 
     following new subsection:
       ``(f) Water Well Pumps and Water Well System Component 
     Parts.--
       (1) The Administrator shall, within one year from the date 
     of enactment, complete a report reviewing data and 
     information on the leaching of lead from water well pumps and 
     water well system component parts (not to include above-
     ground pipes, pipe fittings and fixtures specified under 
     subsection (e)) that come into contact with drinking water 
     and the adequacy of voluntary consensus standards for 
     protecting the health of persons from the leaching of lead. 
     In conducting a review under this paragraph, the 
     Administrator shall identify the potential health risks to 
     children and other vulnerable subpopulations associated with 
     water well pumps and water well system component parts.
       (2) Not later than two years after the date of enactment of 
     this paragraph, if the Administrator determines that a 
     voluntary consensus standard is not effectively protecting 
     the health of persons, then the Administrator shall establish 
     a health-effects based performance standard and testing 
     protocol for the maximum leaching of lead from water well 
     pumps and water well system components parts (not to include 
     above-ground pipes, pipe fittings and fixtures specified 
     under subsection (e)) in water well systems that come into 
     contact with drinking water.
       (3) It shall be a violation of this Act to import, 
     manufacture, sell, distribute or install a water well pump or 
     water well system component parts (not to include above-
     ground pipes, pipe fittings and fixtures specified in 
     subsection (e)) that leach lead above the maximum level 
     identified in the standard established by the Administrator 
     under paragraph (2).''
       (4) Not later than 180 days after the date of enactment of 
     this subsection, the Administrator shall request information 
     as is reasonably required to assist the Administrator in 
     carrying out the requirements of this subsection.''
       On page 86, line 21, strike ``(f)'' and insert ``(g)'' in 
     lieu thereof.

  Mrs. BOXER. Madam President, I am very pleased to offer this 
amendment. I really want to thank the chairman and the ranking member 
for their assistance.
  Madam President, I rise to offer an amendment that addresses the 
serious health threat posed by lead leaching from water well pumps and 
well system component parts.
  My amendment would require EPA to establish, within 2 years, an 
enforceable, health-based standard for lead leaching from water well 
pumps and component parts, unless the Administrator determines that a 
voluntary standard is effectively protecting public health.
  The standard would be set based on a review and report, required by 
the amendment, regarding the leaching of lead from well pumps and other 
component parts in well water systems that come into contact with 
drinking water.
  The report would also examine the adequacy of voluntary standards for 
protecting the health of persons from the leaching of lead and identify 
the potential health risks to children and other vulnerable 
subpopulations associated with well pumps and component parts.
  The amendment was drafted with significant input from the pump 
manufacturers and with the assistance of Senators Reid, Chafee, 
Bumpers, and Pryor. I would like to thank those Senators and their 
staffs for their valuable help.
  Submersible ground water pumps are used to raise ground water to the 
surface. They are immersed at the bottom of a well and often include 
brass and bronze parts. The National Ground Water Association estimates 
that submersible well pumps are used in about half of the private wells 
in the United States and that about 450,000 new submersible pumps were 
sold in 1993. Census data also indicate that 11.8 million homes in the 
United States and over 30 million Americans are served by private 
wells.
  The California attorney general and several private organizations 
recently documented seriously high levels of lead leaching from 
submersible drinking water well pumps made with brass or bronze parts. 
The problem with such pumps is most acute when they are new. In their 
first 10 days of use, they can leach over 1,300 parts per billion of 
lead, over 100 times the level EPA considers safe. The levels of lead 
leached from these pumps drop with time, but can still average 245 
parts per billion after 21 to 30 days. EPA drinking water standards 
prohibit lead in drinking water at levels above 15 parts per billion. 
EPA has set a maximum contaminant level goal of zero parts per billion.
  The EPA has responded to the California findings by taking the 
unusual step of recommending that private well owners with submersible 
pumps have their drinking water tested for lead. In the short term EPA 
recommended that people with brass or bronze pumps less than a year old 
should drink bottled water until they get their test results.
  Lead leaching submersible pumps pose a real threat, particularly to 
our children. Lead affects childrens' nervous systems, IQ levels, 
behavior, and attention span, even at extremely low levels. A recent 
study by researchers at the University of North Carolina indicates that 
the lead from these pumps, leaching at up to 100 times EPA's action 
level of 15 parts per billion, could ``cause relatively severe 
neurologic damage if ingested.''
  Lead is particularly damaging to unborn babies who can ingest lead 
when their mothers are exposed.
  Lead also endangers adults by increasing blood pressure. And if these 
dangers were not enough, lead stays in our bodies, accumulating with 
each exposure.
  So we must look seriously at eliminating any source of lead 
contamination. This is never more true than when the contamination 
comes in the water we must drink every day of our lives.
  Some may argue that this amendment will unjustifiably restrict the 
use of ground water pumps. But such arguments ignore the fact that 
alternatives to lead-containing pumps are readily available. Indeed, 
the best selling water pump in the State of California has no lead in 
it.
  In California, proposition 65 forbids these pumps from leaching 
excessive lead levels into drinking water. The California attorney 
general, along with several environmental and public health groups have 
sued pump manufacturers whose pumps leach lead. But California's action 
will only protect Californians.
  There is no provision in Federal law to reduce lead leaching from 
pumps, and voluntary measures have not been sufficient to assure safe 
lead levels in drinking water from these pumps in the rest of the 
Nation.
  The amendment I propose would simply direct EPA to establish a 
health-based lead leaching test for ground water pumps. These tests 
would assure that pumps do not leach lead into drinking water at levels 
that would threaten the health of children, adults, or women of 
childbearing age.
  With cost effective alternatives readily available, there is no 
reason, no reason at all, for these pumps to continue as a source of 
lead contamination.
  I therefore urge my colleagues to agree to this amendment.
  I again want to thank my colleagues so very much on both sides of the 
aisle for working with us over these last several weeks to come to an 
agreement. I am very proud of this amendment. I think it strengthens 
this bill. I strongly support it. And I am very pleased that my 
colleagues appear to be willing to accept this amendment at this time.
  Mr. CHAFEE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Rhode Island.


                Amendment No. 1724 to Amendment No. 1723

   (Purpose: To require the Administrator to prepare a report on the 
               health risks from submersible well pumps)

  Mr. CHAFEE. Madam President, I send to the desk a second-degree 
amendment to the amendment of the Senator from California. This is an 
amendment that she has approved of, and has been approved on her side 
and the other side. I ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Rhode Island [Mr. Chafee], for Mr. 
     Jeffords, proposes an amendment numbered 1724 to amendment 
     numbered 1723.

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

       In the subsection (f) proposed to be inserted, strike the 
     quotation marks at the end and insert the following new 
     paragraph:
       ``(5) report on leaking oil from submersible well pumps.--
       ``(A) Study.--Not later than 1 year after the date of 
     enactment of this subsection, the Administrator shall 
     complete a study that--
       ``(i) reviews data and information on the leaking of oil, 
     including nonfood grade oil and food grade oil, and 
     polychlorinated biphenyls from well pumps that come into 
     contact with drinking water in private wells and wells in 
     public water systems; and
       ``(ii) identifies potential health risks from the leaking 
     oil and polychlorinated biphenyls in wells.
       ``(B) Report.--Not later than 18 months after the date of 
     enactment of this subsection, the Administrator shall publish 
     a report, to be provided to the environmental agency of each 
     State for distribution to the public, that--
       ``(i) identifies each pump that presents a health risk 
     referred to in subparagraph (A), including the manufacturer 
     and model number of the pump; and
       ``(ii) provides recommendations on presentations to be 
     taken to avoid the risk, such as the replacement of the pump, 
     cleaning of the well and plumbing system in which the pump is 
     located, and testing of the well after the removal of the 
     pump.

  Mr. CHAFEE. Madam President, this amendment asks the EPA to 
investigate the health risks associated with leaking oil and PCBs from 
submersible pumps, and identify those pumps which are most likely to 
fail.
  The EPA is then instructed to produce a report to be provided to the 
public discussing the health risks, listing those pumps which may fail, 
and advising the public on measures to be taken to avoid these health 
risks. Private well owners deserve safe, potable water. This amendment 
will allow us to educate and protect those private wellowners whose 
wells contain pumps that risk leaking.
  Mr. JEFFORDS. Madam President, I would like to commend the chairman 
and ranking member of the Environment and Public Works Committee for 
their commitment to safe drinking water and their tireless dedication 
to completing action on this measure. I would also like to thank 
Senator Boxer and her staff for their assistance on this amendment.
  The amendment I offer today asks the EPA Administrator to conduct a 
study on the leaking of oil and PCB's from submersible well pumps in 
order to identify the health risks associated with damaged or faulty 
pumps and produce a report listing those pumps causing such health 
risks and providing recommendations on actions to be taken to avoid 
this risk.
  I recognize that the Safe Drinking Water Act does not specifically 
regulate or provide assistance to owners of private wells. However, I 
feel strongly that there are certain instances where private well 
owners deserve to be protected against adverse health affects from 
contaminated water. A perfect example is the recent report that well 
pumps and their component parts are leaching lead into drinking water. 
Simultaneously, some submersible pumps can also leak oil and PCBs into 
well water. The Wisconsin Department of Natural Resources has prepared 
and distributed a health advisory regarding the risks these submersible 
pumps pose. The State of Vermont will shortly complete a similar 
advisory to assist well owners in understanding and responding to 
questions about oils and PCBs in submersible pump motors.
  A resident of my home State of Vermont, Craig Stead, of Putney, 
brought this issue to my attention after he and his family suffered 
health problems related to contamination of their well water from oil 
containing PCBs which leaked out of their submersible well pump. In 
hopes that other families would not face similar adverse health 
effects, Mr. Stead has been actively working with our State 
environmental agency, and with my staff, to develop materials which 
would inform other private well owners of the potential risks they may 
face from leaking submersible well pumps.
  Newer submersible well pump motors are generally filled with a water/
propylene glycol mixture, for which leakage presents no concern. Some 
older submersible pump motors however, were filled with oil, and some 
fraction of these may also contain PCB's. Leakage of these contaminants 
may cause a health risk to consumers. Although only a fraction of 
submersible pump motors may fail in such a way as to leak their 
contents into well water, when it does happen it can be very costly to 
fix. Often a well owner must replace the pump, flush out the well and 
continue to monitor the well to assure that the contaminants have been 
removed.

  This amendment asks that the EPA investigate the health risks 
associated with leaking oil and PCB's from submersible pumps and 
identify those pumps which are most likely to fail. The EPA is then 
instructed to produce a report, to be provided to the public, 
discussing the health risks, listing those pumps which may fail and 
advising the public on measures to be taken to avoid these health 
risks.
  Madam President, private well owners deserve safe potable water. This 
amendment will allow us to educate and protect those private well 
owners whose wells contain pumps that risk leaking. I would like to 
thank the Vermont Department of Health, the Vermont Attorney General's 
Office for their assistance on this matter. In addition, I would like 
to thank Craig Stead for this devotion to providing safe drinking 
water.
  I thank the managers of this bill for accepting this amendment and 
look forward to working with them to pass this important measure.
  Mr. BAUCUS. Madam President, these are two good amendments. First is 
the amendment offered by the Senator from California, which is to 
direct the EPA Administrator to develop regulations to protect against 
leaching from submersible pumps. It is a problem across the country and 
particularly in California. It must be addressed.
  The second-degree amendment offered by the Senator from Rhode Island 
on behalf of the Senator from Vermont goes a step further. It is an 
improvement, and it requires a study so we can get a better sense to 
even do a better job in addressing leaching from submersible pumps that 
gets into the ground water systems.
  I urge the Senate to adopt both amendments.
  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
1724 to amendment No. 1723.
  The amendment (No. 1724) was agreed to.
  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
1723, as amended.
  The amendment (No. 1723), as amended, was agreed to.
  Mr. BAUCUS. Madam President, I move to reconsider the vote.
  Mrs. BOXER. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from Montana, Mr. Baucus, is 
recognized.
  Mr. BAUCUS. Madam President, I ask unanimous consent that the vote on 
Senator Johnston's amendment No. 1720 occur, without any intervening 
action or debate, at 3:45 p.m. and that no second-degree amendments be 
in order to that amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. JOHNSTON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Louisiana [Mr. Johnston], is 
recognized.
  Mr. JOHNSTON. Madam President, what is the regular order?
  The PRESIDING OFFICER. Amendment No. 1722 by the Senator from 
Louisiana.
  Mr. JOHNSTON. On risk assessment?
  The PRESIDING OFFICER. That is correct.
  Mr. JOHNSTON. Madam President, did I understand that the Senator from 
New York just wanted 2 minutes?
  Mr. D'AMATO. Yes.
  Mr. JOHNSTON. I ask unanimous consent to lay aside the pending 
amendment for 2 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. D'AMATO. I thank my distinguished colleague from Louisiana.


                           Amendment No. 1725

(Purpose: To require a screening program to test certain substances to 
determine whether the substances may have effects in humans similar to 
    the effects produced by naturally occurring estrogens, or other 
                           endocrine effects)

  Mr. D'AMATO. Madam President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from New York [Mr. D'Amato], for himself, Mr. 
     Moynihan, Mr. Jeffords, Mr. Leahy, Mr. Levin, and Mr. Chafee, 
     proposes an amendment numbered 1725.

  Mr. D'AMATO. Madam President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:
       On page 143, after line 23, add the following new 
     subsection:
       (i) Estrogenic Substances Screening Program.--Section 1442 
     (42 U.S.C. 300j-1) (as amended by section 11(a)(10)) is 
     further amended by adding at the end the following new 
     subsection:
       ``(j) Screening Program.--
       ``(1) Development.--Not later than 1 year after the date of 
     enactment of this subsection, the Administrator shall develop 
     a screening program, using appropriate validated test 
     systems, to determine whether certain substances may have an 
     effect in humans that is similar to an effect produced by a 
     naturally occurring estrogen, or such other endocrine effect 
     as the Administrator may designate.
       ``(2) Implementation.--Not later than 2 years after the 
     date of enactment of this subsection, after obtaining review 
     of the screening program described in paragraph (1) by the 
     scientific advisory panel established under section 25(d) of 
     the Act of June 25, 1947 (chapter 125), and the Science 
     Advisory Board established by section 8 of the Environmental 
     Research, Development, and Demonstration Act of 1978 (42 
     U.S.C. 4365), the Administrator shall implement the program.
       ``(3) Substances.--In carrying out the screening program 
     described in paragraph (1), the Administrator shall provide 
     for the testing of all active and inert ingredients used in 
     products described in section 103(e) of the Comprehensive 
     Environmental Response, Compensation, and Liability Act of 
     1980 (42 U.S.C. 9603(e)), and may provide for the testing of 
     any other substance if the Administrator determines that a 
     widespread population may be exposed to the substance.
       ``(4) Exemption.--Notwithstanding paragraph (3), the 
     Administrator may, by regulation, exempt from the 
     requirements of this subsection a biologic substance or other 
     substance if the Administrator determines that the substance 
     does not have any effect in humans similar to an effect 
     produced by a naturally occurring estrogen.
       ``(5) Collection of information.--
       ``(A) In general.--The Administrator shall issue an order 
     to a person that manufactures a substance for which testing 
     is required under this subsection to conduct testing in 
     accordance with the screening program described in paragraph 
     (1), and submit information obtained from the testing to the 
     Administrator, within a time period that the Administrator 
     determines is sufficient for the generation of the 
     information.
       ``(B) Failure to submit information.--
       ``(i) Suspension.--If a person referred to in subparagraph 
     (A) fails to submit the information required under such 
     subparagraph within the time period established by the order, 
     the Administrator shall issue a notice of intent to suspend 
     the sale or distribution of the substance by the person. Any 
     suspension proposed under this subparagraph shall become 
     final at the end of the 30-day period beginning on the date 
     that the person receives the notice of intent to suspend, 
     unless during that period a person adversely affected by the 
     notice requests a hearing or the Administrator determines 
     that the person referred to in subparagraph (A) has complied 
     fully with this paragraph.
       ``(ii) Hearing.--If a person requests a hearing under 
     clause (i), the hearing shall be conducted in accordance with 
     section 554 of title 5, United States Code. The only matter 
     for resolution at the hearing shall be whether the person has 
     failed to submit information required under this paragraph. A 
     decision by the Administrator after completion of a hearing 
     shall be considered to be a final agency action.
       ``(iii) Termination of suspensions.--The Administrator 
     shall terminate a suspension under this subparagraph issued 
     with respect to a person if the Administrator determines that 
     the person has complied fully with this paragraph.
       ``(6) Agency action.--In the case of any substance that is 
     found to have a potential adverse effect on humans as a 
     result of testing and evaluation under this subsection, the 
     Administrator shall take such action, including appropriate 
     regulatory action by rule or by order under statutory 
     authority available to the Administrator, as is necessary to 
     ensure the protection of public health.
       ``(7) Report to congress.--Not later than 4 years after the 
     date of enactment of this subsection, the Administrator shall 
     prepare and submit to Congress a report containing--
       ``(A) the findings of the Administrator resulting from the 
     screening program described in paragraph (1);
       ``(B) recommendations for further testing and research 
     needed to evaluate the impact on human health of the 
     substances tested under the screening program; and
       ``(C) recommendations for any further actions (including 
     any action described in paragraph (6)) that the Administrator 
     determines are appropriate based on the findings.''.

  Mr. D'AMATO. Madam President, this amendment will require the EPA to 
gather information that may prove essential in the war against breast 
cancer. Specifically, this amendment will require the EPA to develop 
and implement a testing program to identify pesticides and other 
chemicals that can cause estrogenic and other biological effects in 
humans, and to report their findings to Congress within 4 years.
  This amendment is critical in view of growing evidence linking 
environmental chemicals that are capable of mimicking or blocking the 
action of the hormone estrogen to a host of developmental and 
reproductive abnormalities in wildlife and humans. The most alarming 
findings suggest a link between exposure to these chemicals and the 
dramatic increase in human breast cancer that has become so tragically 
apparent in our Nation over the past several decades.
  In 1960, the chances of a woman developing breast cancer were 1 in 
14. Today, they are one in eight. This year alone, breast cancer will 
strike an estimated 182,000 American women, and will take the lives of 
over 46,000. It has become the most common female cancer and the 
leading cause of death among American women between the ages of 35 and 
54.
  For years, researchers have understood that breast cancer is 
influenced by how much estrogen a women produces. If you take the 
existing known risk factors--including early puberty, late menopause, 
delayed childbearing, or having no children at all--they have one thing 
in common: they all contribute to a high lifetime exposure to estrogen. 
There is clear evidence that the more estrogen a woman is exposed to in 
her lifetime, the higher her risk of developing breast cancer.
  Recently, scientists have been taking a close look at the relation 
between so-called xeno-estrogens and increased breast cancer risk. It 
is theorized that these estrogenic materials--which include pesticides 
and other chemicals capable of affecting the internal production of the 
hormone estrogen--may hold the key to explaining some of the 70 percent 
of all breast cancer cases not associated with any of the existing 
known risk factors.
  The research is compelling.
  Perhaps the most startling findings are those of Dr. Mary Wolff of 
Mt. Sinai Medical Center, whose research involved the estrogenic 
chemicals PCB and DDE, which is a breakdown product of the pesticide 
DDT. Dr. Wolff tested the blood of 58 women with breast cancer and 
compared it to that of 171 women who were cancer-free, taking pains to 
ensure that the women were identical when it came to age, childbearing 
history, and every other characteristic known to influence breast 
cancer risk. She found that the women who had developed breast cancer 
had PCB levels in their blood that were 15 percent higher than the 
cancer-free women, and DDE levels that were 35 percent higher. She also 
discovered that as the level of DDE increased, so did the risk of 
developing breast cancer--to the extent that the women with the highest 
DDE levels were four times as likely to get breast cancer as those with 
the lowest levels.
  A subsequent study by Canadian researchers, published on February 2 
in the Journal of the National Cancer Institute, found a further link 
between DDE levels in breast tissue an the development of breast 
cancer. In this case, higher DDE levels were associated with a higher 
risk for a particular-type of breast cancer which feeds on estrogen--a 
type of breast cancer which, according to researchers, has made up a 
larger and larger portion of the increase in breast cancer in recent 
years. In the words of the study's authors, ``this study supports the 
hypothesis that exposure to estrogenic organochlorine may affect the 
incidence of hormone-responsive breast cancer.''
  The women of Long Island, NY have long suspected a connection between 
the region's unusually high breast cancer rates and the exceptional 
concentrations of DDT and other potentially estrogenic pesticides that 
were once applied in an effort to rid former potato fields of a 
parasite known as the golden nematode.
  Women who have grown up and raised families in residential 
subdivisions that were built on top of these abandoned potato fields 
have good reasons to be suspicious. Not least of these is the recent 
finding that if you are a woman and you have lived in Nassau County for 
more than 40 years, your risk of getting breast cancer is 72 percent 
greater than a women of the same age who have lived in the county for 
less than 20 years.
  The National Cancer Institute is now in the process of further 
examining the connection between breast cancer and xeno-estrogens as 
part of a comprehensive study into the causes of Long Island's high 
breast cancer rates. Their findings--expected within the next 5 years--
will contribute greatly to our knowledge base about this important 
issue.
  As we wait for the results of this and other studies, it is vital 
that we begin to systematically identify those pesticides and other 
compounds present in the environment that possess estrogenic 
properties. We must do this so we will be ready, should further 
research confirm a clear link between these substances and breast 
cancer, to take appropriate steps to protect the public.
  This amendment will give us some of the information needed to begin 
taking these steps should they become necessary.
  The amendment would require the EPA to utilize appropriate, 
scientifically validated test systems as part of a screening program to 
identify pesticides and other substances capable of altering estrogenic 
activity in the human body.
  Several quick and inexpensive test systems have been developed in 
recent years which could potentially be utilized in such a screening 
program. Examples include tests developed by Dr. Ana M. Soto of Tufts 
University School of Medicine in Boston and Dr. Leon Bradlow of the 
Strang-Cornell Cancer Research Laboratory in New York, as well as a 
third test utilizing state-of-the-art biotechnology techniques 
described recently in Environmental Health Perspectives by Dr. John 
McLachlan of the National Institute of Environmental Health Sciences.
  Because these tests are simple, inexpensive and quick, they are well 
suited for the kind of large-scale screening needed to identify 
potentially hazardous estrogenic compounds. Since reproduction requires 
complex interactions between hormones and cells in the intact body, the 
tests are not intended to replace existing animal testing models, but 
to complement them by quickly flagging suspect compounds which can then 
be targeted for additional testing or public health approaches.
  Given the availability of these new techniques, I was shocked when I 
learned last September that the EPA does not routinely screen 
pesticides for estrogenicity. I raised this concern in testimony before 
a joint hearing of House Subcommittee on Health and the Environment and 
the Senate Committee on Labor and Human Resources on September 21, 
1993. In my testimony I called for a much more aggressive EPA response 
to the evidence which has been put forward linking estrogenic chemicals 
and breast cancer.
  The EPA has now become more interested in this area--for which I 
commend and encourage them. But I would like to encourage them further 
by requiring them to undertake the kind of widespread screening program 
that our Nation's breast cancer epidemic demands, utilizing 
appropriate, scientifically validated testing techniques, coupled with 
a research program to understand the health risks associated with 
exposure to xeno-estrogens.
  This amendment would ensure that such a program is underway within 1 
year, and would give the EPA Administrator a deadline of 2 years to 
implement a peer-reviewed plan, with a report to Congress due in 4 
years detailing the program's findings and any recommendations for 
further action the Administrator deems appropriate.
  Madam President, we simply cannot afford to wait until we have a 
smoking gun before we act to identify those chemicals in the 
environment that are estrogenic. Breast cancer is claiming the lives of 
women in this country at a rate of 1 death every 11 minutes. It would 
be unconscionable not to arm ourselves with crucial knowledge about 
chemicals that may be contributing to this scourge so that we can 
rapidly implement appropriate public health measures when scientific 
research indicates they are warranted.
  Madam President, this is an urgent matter. Let us not wait until it's 
too late to take this small step to help save the lives of American 
women. I urge the adoption of the amendment.
  Mr. MOYNIHAN. Madam President, I congratulate the Senator from New 
York for his leadership on this amendment that seeks ways to identify 
pesticides and other chemical substances that may lead to breast cancer 
and other effects. I am pleased to have worked with him on the language 
and I wish to be an original sponsor of the amendment.
  Breast cancer is a terrible disease of great concern to women all 
over America and especially to the women of Long Island. Dr. Mary Wolff 
of the Mount Sinai Hospital in New York City studied a population of 
Long Island women and reported, just last month in the Journal of the 
National Cancer Institute, that breast cancer was four times more 
common among women with the highest blood levels of DDE. DDE is a 
breakdown product of the pesticide DDT, a pesticide that was banned 20 
years ago. It seems that DDT may be exacting a delayed toll.
  We are coming to learn that certain environmental pollutants mimic 
naturally occurring hormones and that they may contribute to 
reproductive failure, breast cancer, and other diseases. If true the 
consequences of inaction are too terrible to contemplate. Mr. 
President, there is no doubt but that we need to begin to identify 
those chemicals that cause such effects and we need to take responsible 
action to make sure they cause no harm.
  This will not be easy. The presence or absence of a link between 
estrogenic pollutants, such as pesticides, and breast cancer is not 
clear. Just 1 week after Dr. Wolff's findings were published, Dr. Nancy 
Krieger of the Kaiser Foundation Research Institute in Oakland, CA, 
reported an epidemiological study that found no link between DDE and 
breast cancer. Such is the nature of environmental science. The 
scientific community warns us that a single positive epidemiology study 
is not a conclusive finding, and that positive results from laboratory 
screening studies do not prove harm in humans.
  But then the lack of clear-cut links between cause and effects should 
not daunt us. Regulatory decisions aren't clean. Look at the Safe 
Drinking Water Act [SDWA]. The degree of regulation that looked good in 
1986 seems too costly today. In 1985 we felt there was a strong 
scientific basis for setting allowable amounts of contaminants, 
referred to as the maximum contaminant levels [MCL's]. Today we are 
coming to understand MCL's are based as much on policy as on science.
  This dawning realization coupled with protests from State and local 
officials over the costs of complying with the 1986 act causes the 
Senate to pause. Clearly, protection of public health is our primary 
goal. But does our current law go beyond protection of human health? Do 
we really need to spend so much to insure the public welfare? These 
concerns led me to offer language, accepted during the Environment and 
Public Works Committee markup of the bill for research to learn more 
about the biological basis of the effects caused by drinking water 
contaminants and for developing and applying tools and techniques to 
assess costs, risks, and priorities. Both recognize the need to make 
decisions now, based on the currently available knowledge, but both 
emphasize the need to improve our capacity to make decisions in the 
future.

  The pending amendment takes the same approach. It uses current 
technology to screen the chemicals found in pesticide products to 
identify those that mimic estrogen and other hormones, providing a 
basis for selecting that subset that warrants further study. We simply 
cannot do everything at once so we must set priorities.
  As a next step our intent is that EPA work with expert scientists to 
identity how best to further characterize priority chemicals and report 
to Congress about what criteria they used to set priorities, what 
chemicals they recommend for further study, and what needs to be done 
to develop dose response relationships for these substances so that 
plausible biologically based risk assessment models can be developed 
for use by EPA and others.
  Madam President, this is a realistic and honest approach. It will not 
resolve all uncertainty; nothing ever can or will. In fact, many 
questions will remain, but it will help inform managers as they grapple 
with the factors that must be considered in deciding what to do about 
estrogens in the environment. I thank the managers for agreeing to 
accept this amendment.
  Madam President, would the Senator from New York yield for some 
questions regarding this amendment?
  Mr. D'AMATO. Certainly.
  Mr. MOYNIHAN. Given the concerns that reproductive effects in 
wildlife may be linked to endocrine disruption, for instance decline in 
fertility of Beluga whales in the Saint Lawrence Seaway, some are 
concerned that the amendment is too limited because it focuses on human 
breast cancer. Does the amendment take a position on this issue?
  Mr. D'AMATO. I recognize the concern that environmental estrogens and 
other hormone mimics may cause significant effects on nonhuman species. 
However, the top priority of this amendment is to learn more about 
substances that may lead to breast and other related forms of cancer in 
humans. It is silent about the possibility that effects may occur in 
other species and leaves that judgment to the Administrator.
  Mr. MOYNIHAN. I have heard concerns raised about other endocrine and 
immune system impairments too. Does the discretion provided the 
Administrator under this amendment extend to health effects other than 
breast cancer?
  Mr. D'AMATO. Yes. For example, if the Administrator so chose she 
could include screening for male reproductive effects, effects to the 
immune system, and so forth.
  Would the Senator address a question about the scope of the 
amendment?
  Mr. MOYNIHAN. Certainly.
  Mr. D'AMATO. When the results of the screening study become 
available, subsection j(6) directs the Administrator to ``* * * take 
such action, including appropriate regulatory action by rule or by 
order under statutory authority available to the Administrator, as is 
necessary to ensure the protection of public health.'' Is the intent 
that the Administrator regulate all substances found positive in the 
study under the amendment?
  Mr. MOYNIHAN. No. The testing called for in the amendment is a 
screening study to identify active and inert pesticide ingredients that 
mimic estrogens. It is a hazard identification process designed to 
identify the magnitude of the potential problem and to help set 
priorities for the future. As we learned from the experience with the 
Ames test for carcinogens in the 1970's and 1980's, hazard 
identification tests do not provide enough information to be the sole 
basis for regulatory action. Having said that, let me quickly note that 
the Administrator may have additional information about the exposure 
levels, or about the relationship between exposure and effect for 
certain of the substances to be tested such that she makes a risk 
management decision that regulatory action is needed. If, as a result 
of such evaluations, the Administrator finds a substance likely has a 
potential adverse effect in humans she must take appropriate regulatory 
action. The amendment gives her authority to do so through appropriate 
regulatory action under the Federal Insecticide, Fungicide and 
Rodenticide Act or the Toxic Substances Control Act or under other 
authority available to the Administrator.
  Mr. D'AMATO. What happens once the screening study called for in this 
amendment is completed.
  Mr. MOYNIHAN. The screening study will identify certain pesticide 
ingredients that mimic estrogens and perhaps other hormones. 
Consequently, people will be concerned, some very concerned abut their 
health. It is important to be realistic, honest and responsible 
throughout the design and conduct of this study so that we do not 
create undue apprehension, but it is also important to inform the 
public and to take action where significant hazards are identified.
  Mr. D'AMATO. The Senator raises something that I feel very strongly 
about. Frankly, I am extremely worried about the health impacts 
associated with exposure to pesticides, and I am deeply concerned that 
they may lead to diseases such as breast cancer. At the same time I 
think that the women of Long Island and elsewhere have suffered enough 
anguish, and I do not want to scare people unnecessarily.
  Mr. MOYNIHAN. The Senator raises an extremely important issue--how 
best to determine whether pesticides, a widespread class of 
environmental contaminants, pose a potential risk without creating 
panic in the population by which they will carry out this amendment. An 
important part of this process should be a risk communication strategy 
to identify the likely outcomes, to keep the public informed and aware 
of the purpose of the study, including its strengths and limitations. 
It is important not to over promise and raise false expectations.
  Mr. D'AMATO. Would the Senator like to comment on why the amendment 
requires that the testing requirements and communication strategies by 
reviewed by the Science Advisory Panel and Science Advisory Board, and 
any other review group the Administrator deems appropriate, before 
finalizing the requirements.
  Mr. MOYNIHAN. Yes, certainly. It is because we are just coming to 
learn that certain environmental pollutants mimic naturally occurring 
hormones and that they may contribute to breast cancer, reproductive 
failure, and other diseases. There is no consensus about the magnitude 
and nature of the problem, and so it will be controversial, with those 
on opposite sides of the issue voicing strong opinions. It is our 
intent that the EPA be as responsible and credible as it can be. This 
means that the Administrator should work with expert scientists from 
government, academia, industry and the public health sector to select 
criteria for what constitutes a validated test, to select the set of 
validated tests to be used, and to design the protocols for study. She 
may wish to engage organizations, such as the National Academy of 
Sciences or the American Society for Testing and Materials, and so 
forth for assistance.

  Similarly, when the study is completed, the report to Congress 
required under subsection j(7) should reflect guidance from the 
scientific community, summarizing the findings of the screening study, 
and recommending followup actions, as necessary.
  Mr. D'AMATO. Could the Senator discuss the potential followup actions 
that might be recommended?
  Mr. MOYNIHAN. Obviously, that depends on the outcome of the screening 
program. If only a few substances screen positive, the followup might 
include conducting more detailed tests on each substance that tests 
positive; if a number are positive, however, priorities must be set to 
identify those chemicals of greatest concern for which does-response 
relationships are needed. Though we may wish it were not so, we simply 
cannot do everything at once.
  The criteria for setting priorities may well be to select those 
chemicals found most often in the environment and in the highest 
concentrations, those that are most active or that bioaccumulate, those 
for which there are testable hypotheses for action, and those which are 
representative of specific categories of chemicals. The goal is to 
develop plausible biologically-based risk assessment models for use by 
EPA and others to inform their risk management decisions.
  Mr. D'AMATO. Does the Senator know just what studies will likely need 
to be conducted and how much they will cost?
  Mr. MOYNIHAN. The amendment is silent on exactly what additional 
studies to require after the screening study because we want to benefit 
from the screening results and from EPA's guidance before deciding 
what, if anything, to do next. The determination about how much science 
is needed before making a regulatory decision is a policy call. There 
will never be enough information to unambiguously answer every question 
about environmental safety. When the EPA makes its report to Congress 
it would be appropriate to examine just how much science is recommended 
by EPA to resolve this issue, how much additional research or action 
beyond that initiated by EPA would cost, and how much Congress thinks 
is appropriate to pay.
  Mr. LEAHY. Madam President, I am pleased to copsonsor Senator 
D'Amato's amendment. Recent studies indicate that some pesticides 
imitate human hormones, particularly estrogen, and that such estrogen-
imitating compounds may be linked to breast cancer and disruptions in 
the human endocrine system. Pesticides are found in drinking water.
  We cannot afford to overlook these studies linking breast cancer and 
pesticides. Breast cancer has reached epidemic levels. In 1994 alone, 
182,000 women will be diagnosed with breast cancer and 46,000 will die 
of it. This epidemic greatly concerns Vermonters because our State's 
breast cancer mortality rate is higher than most other parts of the 
country.
  Since the 1940's, both the incidence of breast cancer and the use of 
pesticides have increased dramatically. We must determine what exactly 
the link between these developments may be.
  Last November, I wrote to the Environmental Protection Agency to urge 
it to accelerate the development of a plan to test pesticides that may 
have estrogenic or other endocrine-disrupting properties. This 
amendment helps ensure the plan will be implemented.
  I appreciate the clarifications that Senators Moynihan and D'Amato 
have made about the scope of their amendment. My office received some 
calls expressing concerns about its scope, and I thank the Senators 
from New York for their assistance in responding to these concerns.
  Mr. BAUCUS. Madam President, the committee has worked with the 
Senator from New York, as well as with his colleague from New York. 
This is a very commendable, good amendment. I think it addresses a 
potential public health threat. We urge its adoption.
  Mr. CHAFEE. Madam President, this side, too, thinks it is a good 
amendment. I would like to be added as a cosponsor with the approval of 
the Senator from New York.
  Mr. D'AMATO. I would be delighted.
  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
1725.
  The amendment (No. 1725) was agreed to.
  Mr. D'AMATO. Madam President, I move to reconsider the vote.
  Mr. BAUCUS. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           amendment no. 1720

  Mr. JOHNSTON. Madam President, the pending amendment is one on risk 
assessment. I am very pleased to tell my colleagues that the Senator 
from Montana and I have come to an agreement. The Senator from Rhode 
Island, I understand, is not yet agreeable, but the Senator from 
Montana and I are in agreement, as is the Senator from New York [Mr. 
Moynihan].
  Madam President, the Senate will recall that as part of the EPA 
elevation bill, we considered and passed my risk assessment amendment 
by a vote of 95 to 3. That bill then went to the House of 
Representatives, where certain Members of the House opposed the risk 
assessment amendment. In fact, the amendment was first not included in 
the House version of the EPA elevation bill. It then went to the Rules 
Committee, where a risk assessment amendment similar to mine was 
declared not to be in order, and the rule then came to the floor of the 
House of Representatives.
  The House of Representatives turned down that rule and, in effect, 
said that we should have a risk assessment amendment. I then proposed 
to put that amendment on this legislation, and we began negotiation 
with both Sally Katzen, the assistant administrator of OMB, and the 
distinguished Senator from Montana [Mr. Baucus].
  We have now resolved our differences, Madam President. I can tell the 
Senate that the amendment, as agreed upon, is, I believe, a better 
amendment than when it passed the Senate. What it does is require that 
in any major regulation--a major regulation defined as that which has a 
$100 million effect on the economy or upon the people who have to 
comply with the regulation--that a risk assessment certificate be 
prepared in every one of those major regulations.
  This would be approximately 20 to 25 major regulations each year, and 
we believe that will cover 85 percent of all regulations which come up. 
We also provide for limits on the number of risk comparisons. The 
original amendment required that the administrator, in filing a 
certificate, compare the risk to others which people ordinarily 
encounter.
  The amendment now calls for a comparison to six risks, three within 
the jurisdiction of the EPA or other Federal agencies and three not 
directly related by the Federal Government.
  The idea here is that we want the public to be informed about what 
these risks are, and by comparing them to, say, the risk of getting 
killed by lightning, the risk of getting killed in an airplane crash. 
These are the kind of risks that the public can understand. We want 
this information brought out. The amendment requires that six different 
comparisons be made.
  We require that a cost estimate of complying with the regulation be 
made, and we require a cost effectiveness certification.
  Madam President, risk assessment is, in my judgment, one of the most 
important tools that rulemakers need to use, particularly in EPA, and I 
believe we should require other departments of the Federal Government 
also to use risk assessment. The reason is that in the past, according 
to EPA's own internal documents, risks and rules were based upon public 
opinion rather than science.
  What this is designed to do is to make the rules of the Environmental 
Protection Agency based upon science, that they be adopted only after a 
rigorous cost-benefit analysis is made, and only after a certification 
that the risk justifies the cost.
  I would simply give one example of the kind of thing that this 
amendment is designed to do. It is an example brought out by Judge 
Stephen Breyer, who had a case within his own court. As a result of 
that, he wrote a book called ``Breaking the Vicious Cycle,'' on the 
question of risk analysis. He points out that he had a particular case 
before his court involving a toxic waste dump. This was known in the 
book as ``the last 10 percent problem,'' also known as the case of 
``dirt-eating children.'' Chief Judge Breyer, recently nominated by 
President Clinton to the Supreme Court, wrote this book, and his 
favorite example of poor risk regulation is from his own courtroom.
  The EPA insisted on the cleanup of the last 10 percent of the waste 
from the toxic waste dump located in a swamp at a cost of $9.3 million.
  How much extra safety did the $9.3 million buy? Without this 
expenditure, the waste dump was clean enough for children playing on 
the site to eat small amounts of dirt daily for 70 days each year 
without harm. With the expenditure of $9.3 million, the soil would have 
been clean enough for the children to eat small amounts of dirt daily 
for 245 days per year without harm. But the problem was, of course, 
there were no dirt-eating children at all because this was a swamp.
  Judge Breyer goes into the science of risk analysis, the rigorous 
method of risk analysis, pointing out that example and others and 
saying that our Government needs to adopt the best science and needs to 
adopt this rigorous discipline of risk analysis.
  So, Madam President, the amendment as proposed and as agreed to 
between myself, EPA, Senator Moynihan and Senator Baucus, I believe 
achieves that and does it in a workable effective way.
  Mr. BAUCUS. Madam President, will the Senator from Louisiana yield 
for some questions regarding the amendment?
  Mr. JOHNSTON. Certainly.
  Mr. BAUCUS. Since his amendment was adopted by the Senate last year, 
his staff, my staff, and Senator Moynihan's staff have worked together 
to make a number of changes that substantially improve and clarify the 
language. In order to make sure that those changes are understood by 
the Environmental Protection Agency and those who follow the work of 
the Agency, I think it would be useful to briefly discuss them.
  First, why was the amendment expanded to cover proposed rules, as 
well as final rules?
  Mr. JOHNSTON. I added proposed rules so that the public would have an 
opportunity to comment on the analyses prepared by EPA pursuant to this 
amendment. I think it is important that EPA take such comments into 
account, the same as it does with respect to comments on any other 
aspect of a proposed rule.
  I retained final rules because the final rule may be significantly 
different from the proposed rule. However, to avoid redundancy, I have 
also revised the amendment to provide that the Administrator need not 
publish a new statement along with a final regulation where the final 
regulation is substantially similar to the proposed regulation. 
Instead, the Administrator may simply provide the Federal Register cite 
to the statement that was published along with the proposed rule.
  Mr. BAUCUS. Why was the phrase ``clear and concise'' added to 
subsection (a) of the amendment?
  Mr. JOHNSTON. That phrase was added in order to stress that the 
Administrator's statement and certificate should not be lengthy and 
full of technical jargon. I understand that this amendment calls for a 
discussion of matters that are often complex, but I want the 
Administrator to strive for brevity and readability.
  Mr. BAUCUS. Next, please describe the changes to subsection (a)(1), 
and the purposes of that subsection.
  Mr. JOHNSTON. The revised version of subsection (a)(1) begins by 
calling for a statement by the Administrator that ``describes and, to 
the extent practicable, quantifies the risks to human health or the 
environment to be addressed by the regulation. . . .'' In other words, 
the Administrator is to describe the nature of the risk, and conduct a 
risk assessment to quantify the risk with as much certainty and 
precision as the scientific data allow. The risk assessment should 
describe the methodologies and assumptions used, and should be based on 
the best reasonably obtainable scientific information. Based on the 
quantity and quality of the scientific information, the risk assessment 
should provide a range of uncertainty with respect to any 
quantifications.
  It is particularly important that the risk assessment distinguish 
between what we know about the nature and extent of the adverse effects 
on rodents, for example, and the policy-based procedures that are used 
to estimate the risk of these adverse effects on humans. Such policy-
based procedures should be clearly described as part of the risk 
assessment.
  The second portion of this subsection provides that the description 
and quantification of risk shall include, ``where applicable and 
practicable, the human health risks to significant subpopulations who 
are disproportionately exposed or particularly sensitive.'' This is an 
acknowledgement that there are significant subpopulations that have 
been disproportionately exposed to environmental hazards, such as the 
inner-city poor, and others who may be particularly sensitive to such 
exposures, like children. Where the regulation could affect such 
groups, and where adequate data exist to differentiate the effect on 
them from the effect on the population as a whole, those effects should 
be described and, if practicable, quantified.
  Mr. BAUCUS. I certainly agree. Next, section (a)(2) of last year's 
amendment called for a ``comparative analysis of the risk addressed by 
the regulation relative to other risks to which the public is 
exposed.'' Please explain the changes that have been made in the 
pending amendment.
  Mr. JOHNSTON. Following adoption of last year's amendment, there was 
concern that this provision might be read to require comparison to all 
other risks to which the public is exposed, thereby leading to 
``paralysis by analysis.'' Although I think that this concern is based 
on a rather strained reading of the earlier provision, we nevertheless 
thought it would be useful to put some clear parameters around the 
comparative analysis that we are seeking.
  The provision now provides that the Administrator is to ``compare the 
human health or environmental risks to be addressed by the regulation 
to other risks chosen by the Administrator, including at least three 
other risks regulated by the Environmental Protection Agency or another 
federal agency, and at least three other risks that are not directly 
regulated by the federal government.'' Thus, the Administrator has 
fully satisfied this provision if she compares the risk addressed by 
the regulation to six other risks, three regulated by the Federal 
Government and three not directly regulated by the Federal Government.
  Mr. BAUCUS. What is the purpose of these comparisons?
  Mr. JOHNSTON. There are actually two purposes. The purpose of the 
comparison to other federally-regulated risks is to provide 
policymakers and the public a sense of how the risk addressed by the 
regulation stacks up against some other risks that the Federal 
Government is regulating. The purpose of the comparison to risks not 
regulated by the Federal Government is to provide perspective through 
information regarding understandable risks that we encounter in our 
daily lives. With this information, both the public and policymakers 
will be better equipped to make judgments regarding the allocation of 
our finite resources to the management of various risks.
  Mr. MOYNIHAN. Madam President, I applaud the efforts of the Senators 
from Louisiana and Montana and wonder if they would yield for 
additional questions?
  Mr. JOHNSTON. I am happy to yield to the Senator from New York. But 
first let me first commend him for his leadership in the field of risk 
assessment. It was his environmental risk reduction legislation, 
introduced as S. 2132 in the 102d Congress and as S. 110 in the 103d 
Congress, that were the first bills on this important subject. He is 
truly a leader in this field.
  Mr. MOYNIHAN. I thank the Senator and congratulate him on the pending 
amendment. I certainly support the use of comparative risk as a tool to 
inform environmental decisions. However, I think that it's important to 
note that comparative risk assessment methods are still being 
developed. The data gaps, subjective issues, and uncertainty in any 
ranking process must be recognized. Does the Senator share that view?
  Mr. JOHNSTON. Yes, I do. Comparative risk assessment is an evolving 
field, and I am confident that we can improve our methods and our base 
of scientific information in the coming years. In the meantime, as we 
both know, risk assessment is a tool that is useful today, as long as 
we bear in mind its limitations as well as its strengths. Furthermore, 
we cannot afford to wait until it is perfect. We need to use it to help 
put environmental concerns in perspective, knowing that we will get 
better at it the more we use it.

  Mr. BAUCUS. If the Senator would yield, I have heard concerns that it 
is inappropriate to compare voluntary risks, such as smoking, to 
involuntary risks, such as air pollution. Does this revised provision 
take a position on this issue?
  Mr. JOHNSTON. No. My feeling all along has been that the purpose of 
the comparison is to create reference points that put in context the 
risk addressed by the regulation; this, in my mind, has nothing to do 
with whether the risk is voluntary or involuntary. However, my 
amendment is silent on this issue and leaves that judgment to the 
Administrator. If she feels that involuntary risks should be compared 
only to other involuntary risks, the amendment allows her to do so. The 
key is to make comparisons that can be readily understood by the 
public.
  Mr. BAUCUS. Does this provision require the Administrator to conduct 
a risk assessment for each of the other risks that the Administrator 
chooses for purposes of comparison?
  Mr. JOHNSTON. No; the Administrator should use existing information 
regarding the nature and magnitude of the other risks used for 
comparison. With respect to the federally regulated risks used for 
comparison, the Administrator should rely on existing risks assessments 
prepared by EPA or another Federal agency. With respect to the risks 
not regulated by the Federal Government, the Administrator should use 
peer-reviewed, published estimates of risk.
  Mr. BAUCUS. I recall that the EPA prepared a comparative risk 
analysis when it issued a proposed rule on the National Emission 
Standards for Hazardous Air Pollutants; Regulation of Radionuclides 
[NESHAPS], 54 Fed. Reg. 9612 (March 7, 1989). In section VI.B of the 
proposed rule, EPA provided, for comparative purposes, a description 
and quantification of various other risks. Some of these risks were 
natural and not regulated; others were regulated. Is this the type of 
comparative information that this provision would require?
  Mr. JOHNSTON. The Senator is correct. That rule placed the 
radionucilde risk in perspective by comparing it to the risks from 
natural background radiation, home accidents, rare diseases, tripping 
and falling, and rabies.
  Mr. BAUCUS. Subsection (a)(2)(B) provides that the Administrator 
shall compare the risk addressed in the regulation to at least three 
risks that are not directly regulated by the Federal Government. Why 
did we use directly in this provision?
  Mr. JOHNSTON. Because many of the risks that we face in everyday life 
are regulated in some way by the Federal Government. For example, there 
is a very small risk of dying of liver cancer from eating peanut 
butter. Even though the Federal Government undoubtedly has regulations 
regarding the production and labelling of peanut butter, I regard this 
risk as one not directly regulated by the Federal Government.
  Mr. BAUCUS. Paragraph (a)(4)(C) of the amendment provides that the 
Administrator must certify that there is no regulatory alternative that 
is allowed by the statute under which the regulation is promulgated and 
that would achieve an equivalent reduction in risk in a more cost-
effective manner. Can you give us a brief description of this 
provision?
  Mr. JOHNSTON. My main concern is that the regulation be designed in 
the most cost-effective manner possible. In response to concerns 
raised, I added the phrase ``allowed by the statute'' in order to make 
clear that no regulatory option prohibited by the applicable statute 
need be considered in determining the most cost-effective design. 
Similarly, I added ``achieve an equivalent reduction in risk'' to make 
clear that this amendment does not dictate a particular level of risk 
reduction; it simply says that once the level of risk reduction is 
determined by the Administrator, the regulation must be designed in the 
most cost-effective manner to reach that level.
  Mr. MOYNIHAN. If the Senator would yield, section (a)(4)(D) provides 
that ``the regulation is likely to produce benefits to human health or 
the environment that will justify the costs.. . .'' What is the 
significance of using the word ``justify''?
  Mr. JOHNSTON. Justify was used rather than exceed for two reasons. 
First, it is often more difficult to estimate the benefits of an 
environmental regulation than it is to estimate the costs. For example, 
a clean air regulation may have far-reaching benefits for the 
environment that are difficult to quantify.
  Consequently, I wanted to give the Administrator the latitude to take 
into account those difficult-to-estimate benefits. If the Administrator 
concludes that the benefits of the regulation, both quantifiable and 
unquantifiable, justify the costs to be incurred, the amendment allows 
her to enter a positive certification on this point. All I ask is that 
the Administrator candidly describe in her certificate the 
nonquantifiable benefits that weighed in her determination, and a brief 
statement of her reasons.
  The second reason for using justified is that other policy 
considerations may constitute a benefit of a regulation. For example, 
the Administrator may conclude that poor children in particular inner-
cities may be suffering from exposure to a chemical that poses a human 
health threat. Even though the quantifiable benefits may not exceed the 
quantifiable costs, the Administrator may determine that the regulation 
is nevertheless justified on other policy grounds. Again, I have no 
objection to these considerations, as long as the Administrator clearly 
articulates them as part of her certificate.
  Mr. BAUCUS. I share the Senator's view. It is perfectly appropriate 
to consider nonquantifiable benefits, and to take into account other 
policy considerations, but it is also imperative to clearly and 
candidly describe how those matters figured in the decision to issue 
the regulation.
  I would like to give some general and some specific examples of 
difficult-to-quantify benefits. General examples include avoided 
cancers of noncancer diseases that reduce the quality of life, the 
preservation of biological diversity and the sustainability of 
ecological resources, and the maintenance of an esthetically pleasing 
environment. Maintaining a clear view of the Grand Canyon, preserving a 
unique species of fish or wildlife, or extending the overall life 
expectancy of a population are more specific examples of benefits that 
are difficult to quantify.
  Mr. MOYNIHAN. If the Senator will yield, does the Senator from 
Louisiana intend for the Administrator to be able to consider 
limitations in methods, sparse data, and uncertainty about the 
relationship between exposure and effect in her justification? I think 
it is critical that these matters be considered and discussed by the 
Administrator so that we can better understand how decisions are made 
and how we can improve them in the future.
  Mr. JOHNSTON. Yes, I intend that the Administrator be able to 
consider such matters. However, when she does so, she must clearly and 
specifically explain what she is considering and why.
  Mr. BAUCUS. If the Senator will yield, I would like to ask the 
Senator from Louisiana to describe what is meant by the phrase ``or 
change the factors that the Administrator is authorized to consider in 
promulgating a regulation pursuant to any statute, ***.''
  Mr. JOHNSTON. My amendment requires the Administrator to engage in 
analyses that are not called for in every environmental statute. For 
example, not all environmental statutes require risk analysis and cost-
benefit analysis. This phrase makes clear that the requirement in my 
amendment to perform these analyses does not change the factors, 
contained in the applicable environmental statute, that the 
Administrator is authorized or required to consider in deciding whether 
to promulgate the regulation. Conversely, this phrase does not relieve 
the Administrator of the obligation to perform any of the analyses 
required by this amendment, even if the applicable environmental law 
forbids the consideration of such analyses in promulgating the 
regulation.

  Mr. BAUCUS. Please describe section (e) of the amendment, relating to 
judicial review.
  Mr. JOHNSTON. My understanding is that EPA regulations are usually 
reviewed under the Administrative Procedures Act, which allows a court 
to set aside an agency action if certain relatively narrow tests are 
met, i.e., it is arbitrary and capricious, violates the Constitution, 
is in excess of the agency's statutory authority, or is unsupported by 
substantial evidence. Section (e) makes clear that my amendment creates 
no new rights to judicial or administrative review. If a major 
regulation is subject to judicial review under any other provision of 
law, such as the APA, the adequacy of the certification itself, and any 
alleged failure to comply with this section, may not be used as grounds 
for affecting or invalidating that major regulation. For example, if 
the Administrator certifies that the benefits of the regulation justify 
the costs, that certification could not be challenged as arbitrary and 
capricious.
  However, the statements and information prepared pursuant to this 
section, including the statements and information contained in the 
certification, may be considered as part of the review conducted under 
such other provision of law. For example, such statements and 
information could be cited to show that the regulation is arbitrary and 
capricious under the APA.
  Mr. BAUCUS. Will the Senator from Louisiana please explain why the 
amendment now applies to major rules, defined in subsection (f) as 
regulations that may have an effect on the economy of $100 million or 
more in any 1 year, instead of all rules?
  Mr. JOHNSTON. The amendment adopted by the Senate last year applied 
to all regulations issued by EPA. That aspect of the amendment was 
criticized by the Administration and environmental groups as over-
inclusive, and I was persuaded that their criticism has merit.
  Consequently, the amendment is now limited to major regulations, 
which are defined in subsection (f) as those that have an effect on the 
economy of $100 million or more in any 1 year. That threshold was 
chosen based on a May 11, 1994, letter that I received from Sally 
Katzen, Administrator of OMB's Office of Information and Regulatory 
Affairs, stating that a $100 million threshold would capture 
approximately the largest 20-25 proposed and final regulations per 
year. More importantly, she estimated that those 20 to 25 regulations 
would account for roughly 85 percent of the total cost to the economy 
imposed by EPA rulemaking. I ask unanimous consent that her letter be 
printed in the Record at this point.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:


                            Executive Office of the President,

                              Office of Management and Budget,

                                     Washington, DC, May 11, 1994.
     Hon. Bennett Johnston,
     U.S. Senate, Washington, DC.
       Dear Senator Johnston: In connection with your 
     consideration of the appropriate threshold for application of 
     the Johnston amendment, you asked me to provide an overview 
     of Environmental Protection Agency (EPA) rulemaking 
     activities, including an estimate of the number of rules 
     reviewed by the Office of Information and Regulatory Affairs 
     (OIRA) each year that have an annual effect on the economy of 
     $100 million per year or more.
       Over the past several years, EPA has published 300 to 400 
     final rule documents each year in the Federal Register, and a 
     corresponding number of proposed rules, for a total of 600 to 
     900 documents each year. Historically, under its Executive 
     Order No. 12291 review, the Office of Management and Budget 
     (OMB) has reviewed about a quarter of these documents. The 
     remaining 500 to 650 final and proposed rules include, for 
     example, EPA actions on State Implementation Plan revisions 
     (roughly 300 a year), EPA actions on individual pesticide 
     tolerances (roughly 150 a year), and procedural rules or 
     corrections to previously issued rules (roughly 100 a year). 
     Most of these actions were exempted from Executive Order No. 
     12291 review in the early 1980's.
       Under Executive Order No. 12866, EPA is submitting for 
     review about two-thirds of the rules and proposals that it 
     submitted under Executive Order No. 12291. In addition to 
     those previously exempted, we are no longer reviewing under 
     Executive Order No. 12866 relatively minor rules, such as 
     rules establishing new monitoring techniques, State petitions 
     for alternative fuel volatility standards, and minor rules 
     for an individual industry.
       Historically (and currently), EPA has submitted roughly 20 
     to 25 proposed and final rules each year that would have an 
     annual effect on the economy of $100 million or more. A small 
     subset of reviewed rules--three or four rules a year--account 
     for as much as 70 percent of the total costs imposed by EPA 
     rulemaking in any given year. All of the rules with an effect 
     on the economy of $100 million or more per year would account 
     for roughly 85 percent of the total cost to the economy of 
     EPA rulemakings promulgated in that year. Our best estimate 
     is that the inclusion of rules having an economic effect of 
     $50 million or more per year, instead of $100 million, would 
     increase the number of these rules (and the workload) by 50 
     percent (or 10 to 15 proposed and final rules per year). 
     These additional rules would account for only a modest 
     incremental fraction of the total cost of EPA rulemaking 
     (probably less than 10 percent in a typical year). Given the 
     relatively small contribution of these smaller rules to the 
     total cost of EPA rulemakings, the benefits of requiring a 
     major benefit/cost study will also be correspondingly 
     smaller. It is for this reason, that the benchmark of $100 
     million or more per year has been used since 1974 to identify 
     major rules requiring analysis.
       If you have any further questions concerning this, please 
     give me a call.
           Sincerely,
                                                     Sally Katzen.

  Mr. JOHNSTON. I stress the importance of the 85 percent figure in my 
decision to move the threshold to $100 million. I think that applying 
the amendment to regulations that impose 85 percent of the regulatory 
costs is an acceptable cutoff, but I also intend to track that figure 
in the coming years to make sure that it does not significantly 
decline. If it does, I intend to offer legislation to lower the 
threshold, and would like the assurance of the Senator from Montana 
that he would join me in that effort.
  Mr. BAUCUS. I agree that we should use the $100 million threshold 
because that is the threshold that has been used in regulatory 
executive orders since at least 1981. However, I would share the 
concern of the Senator from Louisiana if the 85 percent figure fell 
significantly, and pledge to work with him to amend the threshold if 
that happens.
  Mr. JOHNSTON. I thank the Senator. I also think that it is important 
to explain what subsection (f) means when it defines a major regulation 
as one that ``the Administrator determines may have an effect on the 
economy of $100,000,000 or more in any one year.'' Although these words 
were largely borrowed from the Clinton administration's Executive order 
on regulatory review, we need to express our own intent regarding their 
meaning.
  First, the word ``may'' was used instead of ``will'' because we want 
the Administrator to err on the side of applying the pending amendment 
to regulations that are estimated to be close to the $100 million 
threshold and the precise economic effect is uncertain. I would be very 
concerned if, after the enactment of this provision, a pattern were to 
develop of regulations that are estimated by EPA to have effects on the 
economy or $80-100 million, particularly if there was evidence that the 
actual effect on the economy turned out to exceed $100 million.
  Second, ``effects on the economy'' is a rather broad phrase that is 
intended to include the costs to the U.S. Government, State and local 
governments, and the private sector of implementing and complying with 
the regulation, as well as other effects on the economy that are 
attributable to the regulation, such as the loss of jobs and reductions 
in industrial output. It is important to note that the benefits of a 
regulation cannot be netted against the costs for purposes of 
determining the effects on the economy. Does the Senator from Montana 
agree?
  Mr. BAUCUS. Yes. I believe that the Senator has aptly described our 
intent.

  Mr. MOYNIHAN. If the Senator will yield, I would like to briefly 
discuss with the Senator from Louisiana the relationship between the 
pending amendment and section 15 of the Safe Drinking Water bill, which 
I offered in the Environment and Public Works Committee. Section 15 
asks the Administrator to compare the risks, costs, and benefits of 
agency actions across sources of pollution. The goal is to provide the 
Administrator with information that will help inform her decisionmaking 
now, but equally important, to build the Agency's capacity for future 
decisionmaking. My understanding of the pending amendment is that it 
requires the use of the tools currently available to prepare estimates 
of risks, costs, and benefits when EPA adopts major regulations. Thus, 
I think that section 15 of the bill and the pending amendment emphasize 
two different aspects of the risk assessment and cost-benefit analysis 
issue. Does the Senator agree?
  Mr. JOHNSTON. Yes. Section 15 emphasizes the improvement of our 
methodologies in this field, while the pending amendment focuses on the 
analyses that should be performed when EPA adopts major regulations. I 
see the two provisions as complementary.
  We also need to briefly discuss the process that we are agreeing to 
follow after this bill passes the Senate. Because the Senator from 
Montana will lead the Senate conferees on this bill, and because I will 
not be a conferee, can the Senator assure me that he will vigorously 
defend this provision in conference, and consult with me if any changes 
are proposed?
  Mr. BAUCUS. Yes. I not only support this provision, but also will 
regard it as the position of the Senate, which I am bound to defend in 
conference. In the event that others in conference propose to make 
changes to the amendment, I will be happy to consult with the Senator 
from Louisiana.
  In turn, will the Senator from Louisiana agree to encourage his 
colleagues to accept the compromises reflected in his revised 
amendment?
  Mr. JOHNSTON. Yes. I am satisfied with the revised amendment, and 
will urge those who have been advocating the statutory application of 
risk and cost-benefit analysis to EPA regulations to support its 
enactment.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. CHAFEE. Madam President, in the words of the famous American 
philosopher Yogi Berra I feel like this is ``deja vu all over again.''
  The question before us is, Is this a killer amendment? Let us review 
the bidding.
  Last April 29, while the Senate was considering the EPA Cabinet 
bill--that was the bill to make the head of the EPA a member of the 
President's Cabinet--the Senator from Louisiana presented an amendment 
on risk assessments and cost-benefit analysis very similar to this 
amendment that we are considering here today. The Senator argued 
forcefully, and I might say persuasively, as he can. Few people can 
exceed the persuasive powers of the senior Senator from Louisiana.
  His point was that EPA promulgates too many regulations without 
giving adequate consideration to the costs being imposed on the 
regulated community. He argued that the EPA regulations are frequently 
designed to address risks that in his and others' judgments sometimes 
are too small to be addressed.
  After negotiating with the administration officials and some of the 
leading environmental leaders in the Senate, the Senator modified his 
amendment and we were assured that the amendment, as modified, was not 
opposed by the administration and seemed to be acceptable to everyone, 
including those of us who care deeply about EPA and its ability to 
carry out its mission.
  Based on that and the persuasive powers of the Senator, 95 Senators 
came to the floor and approved it and only 3 Senators voted against it. 
That is a pretty good margin any day around here.
  What happened after that? Well, people had a chance to more 
thoroughly consider the amendment. They realized it was not entirely a 
benign amendment, and it ran into significant opposition, as the 
Senator from Louisiana has said, in the House of Representatives. And 
the environmental leaders in the House fought back efforts in the 
committee to add the amendment to the House version of the EPA Cabinet 
bill. The environmental leaders also convinced the Rules Committee that 
the amendment was not germane and obtained a rule that would have 
precluded any attempt to bring the Johnston amendment up as an 
amendment on the floor.
  As was pointed out, the rule was defeated on the floor, which does 
not happen very often. What happened then? Well, the environmental 
leadership of the House pulled the bill. The EPA Cabinet bill is dead, 
and it is dead because that amendment is on it.
  The environmental leaders in the House said we are not going to bring 
that bill up, if that is the price of bringing the EPA Cabinet bill to 
have the risk assessment amendment of the Senator from Louisiana on it.
  The point I am making here today is, we have a good bill before us 
and it has a lot of support. I am talking about the safe drinking water 
bill. But I believe that if this amendment is adopted and we start down 
the path that was followed in the House of Representatives, we are not 
going to see this safe drinking water bill emerge.
  I am not just conjuring this. I am not just dreaming it up. We have 
seen what has happened and there is the experience. It is exactly what 
happened with the Cabinet bill. So, Madam President, I think that is 
one very good reason not to accept this.
  Now, let me give you another reason that I believe that this 
amendment is not proper at this time. It is not necessary. No one is 
going to stand here and say that risk assessment is not a useful tool. 
It is. It is important for everyone to recognize that this amendment is 
not about some being for or some being against the use of risk 
assessment. EPA already is required to use risk assessment, and does it 
extensively. So risk assessment is nothing. New since 1981 it has been 
the basis for countless public policy decisions dealing with the 
regulation of chemicals in our environment.
  Indeed, Madam President, there is an Executive order from this 
President, President Clinton, that continues this tradition of risk 
assessment and requires EPA to use this important tool when making 
decisions.
  When the Senator first presented his amendment in April of last year, 
after that and in response to the Senator's concerns the following 
September--in other words, the amendment was presented the last part of 
April--in September of last year, 1993, President Clinton issued an 
Executive order, and that new Executive order covers many of the points 
addressed by the Senator's amendment.
  So the question is, Why do we need it? In my view, we do not need it. 
I do not think it will add anything good, and I do believe it will 
produce results that none of us can foresee and few of us will like.
  Do not think that risk assessment is without controversy. There is 
plenty of controversy, and some people say the assumptions that are 
undertaken when you make a risk assessment are conjured, that they are 
dreamed up. Who knows? Who can bring up all the assumptions that have 
to go into a risk assessment?
  Let me just give you a little illustration of risk assessment gone 
haywire.
  Take the example of dioxin at the town of Times Beach in Missouri. 
Most of us here are familiar with that case.
  In 1983, 11 years ago, EPA discovered that the town of Times Beach 
was contaminated with dioxin, so they tracked it down. It turned out 
someone had disposed contaminated oil and spread it over the dirt roads 
in the town to control the dust. It seemed like a good idea. Take a 
little oil, waste oil, and spread it around and keep the dust down. So 
they got rid of the oil and they got rid of the dust at the same time.
  The provisions of the Superfund required EPA to take some action when 
dioxin was discovered, but the law did not mandate what kind of 
standard you have for a cleanup. How do you clean up dioxin? The law 
did not say that.
  The EPA went to the Centers for Disease Control in Atlanta and said, 
``Give us a risk assessment here. Figure out what the public health 
consequences are of this dioxin in this nice town of Times Beach.''
  So they did that. They came up with a risk assessment. And based on 
the advice of the Centers for Disease Control--which every one of us 
here admires; we all have great respect for the Centers for Disease 
Control--they came up with a health risk assessment. It was so strong 
in presenting the dangers of dioxin that EPA decided to evacuate the 
town of Times Beach and buy the whole town.
  Now we have 20-20 hindsight. We look back and everybody says that 
decision was an unnecessary overreaction. It was ridiculed.
  But there was a decision that came about by risk assessment. They 
weighed all the things and took the assumption and took the conclusion 
that this dioxin is incredibly dangerous.
  What does risk assessment bode for the future? Well, what about 
dioxin emissions from municipal incinerators? Or what about the 
discharges of chlorine from our rivers and lakes? What about the 
exposure to secondhand cigarette smoke.
  To those who want every EPA decision based on a rigorous scientific 
risk assessment, I say, be careful. You be careful what you wish for. 
You may get it.
  As I stated earlier, this amendment has nothing to do with being for 
or against risk assessment. It is the extent to which you carry it.
  And there are other things involved in all of this besides straight 
risk assessment. There are sociological situations.
  (Mr. DORGAN assumed the chair.)
  Mr. JOHNSTON. Mr. President, will the Senator yield for a question?
  Mr. CHAFEE. May I just finish; then I will be glad to answer 
questions.
  I think we need to do a better job of assessing priorities and costs 
and benefits, and all of this we can improve on. That is why I 
supported an amendment by Senator Moynihan during consideration of this 
bill in the committee. So section 15 of the bill, beginning on page 
129, recognizes the importance of risk assessment. This is what it 
says. This section of the bill directs the Administrator to rank 
sources of pollution with respect to the relative risks of adverse 
effects on human health, on the environment, and on the public welfare.
  It also directs the Administrator to estimate the private and public 
costs associated with every source of pollution and the costs and 
benefits of complying with regulations designed to prevent or reduce 
the risks associated with each source of pollution. The risk ranking 
and the cost-benefit analysis are to be communicated to the public and 
to Congress in triennial reports.
  Mr. President, with the Clinton Executive order in place, and with 
the addition of section 15 that I just touched on, I believe this 
amendment is unnecessary. I think it should be defeated for the larger 
good of the bill.
  As I pointed out, I think the inclusion of this amendment is going to 
kill this bill. And I am not just dreaming that up; I am looking at 
past experience.
  I have a number of questions and specific problems with the 
amendment.
  First, why do we limit it to EPA? Why EPA alone? Is this new, such a 
policy? Why not every agency? Why do we pick on EPA?
  If the concern about expanding its scope is one of House committee 
jurisdiction, why not add at least the Secretary of Energy? This bill 
is already headed to the Energy and Commerce Committee, so there is no 
jurisdictional problem. Let us have it apply to the Department of 
Energy, just as it applies to EPA.
  Why does this amendment only look at half the equation? It imposes 
requirements on EPA only with respect to regulations promulgated to 
control risks. What about EPA decisions not to regulate? Suppose EPA 
says we are not going to regulate their decisions, to allow activities 
to continue without regulatory constraints, even where those activities 
create significant risk? Suppose there is a risk out there, and EPA 
says we are not going to regulate? Should we not have the same risk 
assessment study as when they say they are going to regulate?
  What would a risk assessment and a cost-benefit analysis tell about 
EPA's decision to forgo the regulation of some oil and gas waste under 
the Federal hazardous waste law?
  Mr. President, I know that turning around a vote of 95 to 3 is not 
the easiest thing in the world, and it is even harder when the sponsor 
of the amendment has made significant changes to meet some of the 
criticisms that were expressed against his earlier amendment; that is, 
the amendment that was brought up last year.
  The Senator has made a number of changes to address some of the 
concerns that people had with his amendment. But he has not made enough 
changes to satisfy at least this Senator.
  For example, the amendment continues to require that the EPA 
Administrator certify that certain conditions are met when proposing or 
promulgating a major regulation. The major problem here, Mr. President, 
is the requirement that the Administrator issue a formal legalistic 
verification of fact, in essence a declaration of truth. These 
conditions are not subject to truth or certainty. When you are making a 
risk assessment, you do not know. Each of these conditions goes to the 
Administrator's judgment. The Administrator has to make a judgment: Was 
the analysis performed using the best information? Is a regulation 
likely to result in significant reduction in risk? Was there a more 
cost-effective alternative? Is the regulation likely to produce 
benefits that justify the costs?
  Imposing this requirement of certifying or issuing a finding as to 
each of these conditions is unrealistic, and it is troubling to me. It 
seems to me that a simple statement of the Administrator's judgment as 
to whether the conditions were met would suffice. He cannot cross his 
heart and hope to die and raise his right hand.
  Mr. President I do not think we need to go beyond the Clinton 
Executive order.
  Do we need to go beyond the new section 15 of the bill? I do not 
think so.
  Because the Johnston amendment goes beyond that, I urge my colleagues 
to oppose it.
  I thank the Chair.
  Mr. JOHNSTON addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from 
Louisiana [Mr. Johnston].
  Mr. JOHNSTON. Mr. President, just very briefly, because I think the 
Senator has pointed out that this passed previously by a vote of 95 to 
3, and I do not think it is necessary to further justify it for the 
Senate except to make a couple of points.
  The Senator from Rhode Island pointed out that Times Beach was an 
example of risk assessment gone amok, that caused all the difficulties 
we had--shutting down a town, spending hundreds of thousands of 
dollars. I agree with him that certainly Times Beach was a disaster. 
However, Times Beach is a pertinent example of why you need risk 
assessment.
  The distinguished Senator from New York [Mr. Moynihan], testified 
before our committee about Love Canal. Here is what he said. I am 
quoting from page 6 of our report.

       There was no data. There was no evidence. There was no 
     research. There were simply newspapers announcements, 
     television announcements, and enacted legislation in 3 weeks' 
     time. As far as I know--and I am prepared to be told I am 
     wrong--but as far as I know, there have never been any 
     scientific health data out of that region to establish any 
     morbidity, much less mortality.

  So the Love Canal is an example of why you need risk assessment. We 
need to put science in the loop before we spend hundreds of thousands 
or even billions of dollars in the case of some of these amendments.
  I pointed out earlier that EPA's own internal documents show that 
they have not used risk assessments. EPA recognized this in its 1987 
document entitled, ``Unfinished Business,'' where EPA systematically 
ranked the seriousness of the various risks it was addressing and could 
address. The report found that there was little correlation between the 
risk that the EPA staff judged as the most threatening and EPA's 
program priorities. The report said:

       Overall, EPA's priorities appear more closely aligned with 
     public opinion than with our own estimated risks.

  EPA, after a study of risk and risk assessment, says that their 
regulations are in line with public opinion but not with their own 
estimated risks. These conclusions were confirmed in 1990 by EPA's 
Science Advisory Board in its ``Reducing Risk'' report. The report 
urged EPA to target its environmental protection effort on the basis of 
opportunities for the greatest risk reduction.
  I will close with two thoughts. First, this will not kill this bill. 
It is now supported by the committee, by the committee chairman; it is 
supported by EPA. It was worked out with Sally Katzen of OMB. I believe 
it is an excellent solution to a very, very important and difficult 
problem. I think it is demanded by the country, by the people of this 
country.
  Mr. President, this amendment as worked out will make this a stronger 
bill and will bring us rigorous risk assessment, which will both reduce 
the cost of regulation and ensure that we regulate those risks which 
are risks to Americans and I believe will help in the health and safety 
as well as the pocketbooks of taxpayers.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Montana 
[Mr. Baucus].
  Mr. BAUCUS. Mr. President, I think it is fair to say this is not an 
easy issue. It is one that requires balance, it requires much scrutiny 
to try to figure out what is the best use of risk assessment and cost-
benefit analysis.
  Just to clear the record, it is true the earlier risk assessment 
amendment offered by the Senator from Louisiana was termed as a 
``killer amendment.'' That is the reason the EPA cabinet bill has not 
proceeded in the House. That is true.
  It is not true, however, in this Senator's judgment, that this new 
version is a killer amendment because it is so different. This is not 
the same risk assessment amendment that the Senate voted on--I think 
only three Senators opposed it--not too long ago. In addition, the EPA 
is not opposed to this compromise worked out between the Senator from 
Louisiana----
  Mr. JOHNSTON. Will the Senator yield on that point?
  Mr. BAUCUS. I will.
  Mr. JOHNSTON. The Senator is correct, it was worked out with EPA. EPA 
does not oppose it. I misspoke in saying EPA endorses the amendment. 
They did not oppose it, and we did work it out.
  Mr. BAUCUS. That is correct, it is not opposed--it is not supported, 
but it is not opposed by the Environmental Protection Agency.
  It seems whenever we debate environmental legislation these days, 
three issues keep coming up. The issues are risk, takings, and unfunded 
mandates. Some see the three issues as magic potions that will cure all 
our ills. Others see them as disguised attempts to gut our 
environmental laws and refer to the three as the ``unholy trinity.'' I 
think the honest assessment is that any or all of the three may or may 
not be potions, or gut environmental laws, depending on how they are 
written. In fact, each of the three issues embodies an important core 
principle. We should set priorities using, when appropriate, risk and 
cost-benefit analysis. I do not think many people would disagree with 
that. We should respect property rights. We should help provide State 
and local governments the resources to match their responsibilities. I 
do not think anybody quarrels with those statements.
  However, these important principles must be balanced against other 
equally important principles, such as protecting the public health. 
After all, that is why we pass environmental statutes. If we get past 
the slogans on both sides and try to balance these principles, we can 
work constructively together and improve our environmental laws. That 
is particularly true in the case of risk and cost-benefit analysis. 
Properly applied, risk and cost-benefit analysis can increase 
environmental protection, not diminish it.
  Let me repeat that. Properly applied, risk and cost-benefit analysis 
can increase environmental protection, not diminish it.
  Risk and cost-benefit analysis can help us get the most bang for our 
environmental buck. They can help us set rational priorities, and they 
can standardize our estimates of hazards, costs, and benefits. We will 
have greater environmental protection, with properly applied risk and 
cost-benefit analysis.
  For precisely these reasons, we included carefully crafted risk 
provisions in the bill which the Senate is considering today, both with 
respect to standard-setting and with respect to the Moynihan amendment 
that helps establish better overall environmental priorities.
  The amendment offered by Senator Johnston goes, I might say, several 
steps further to apply risk and cost-benefit analysis, but only to 
major EPA regulations. Last year, the Senator from Louisiana offered 
another version of this amendment to the EPA cabinet bill. The 
amendment was approved by an overwhelming vote. Members of the Senate 
sent a strong message.
  At the same time, the amendment generated serious concerns about 
several issues. There were concerns that, by applying to all EPA 
regulations, the amendment would lead to paralysis by analysis; that 
is, everything would be studied to death so the Agency could not 
function. There were concerns that the amendment did not give proper 
consideration to the benefits of a regulation, a point addressed by the 
Senator from Rhode Island, including environmental benefits; benefits 
that may be difficult or impossible to quantify. There were concerns 
the amendment might not sufficiently preclude judicial review and 
therefore might generate endless litigation.
  Over the past several weeks, I have been working with Senator 
Johnston, Senator Moynihan, and others to address these and other 
concerns that arose regarding the earlier version of the Johnson 
amendment, and I am pleased to report the Senator from Louisiana has 
agreed to several key changes that I think improve the amendment 
substantially.
  Some of the key changes are as follows:
  First, the amendment does not apply to all rules, only to those that 
have an economic effect of at least $100 million a year. This focuses 
our efforts on the most significant rules and regulations of the 
Agency, perhaps a dozen or two out of about 400.
  The amendment considers environmental justice, requiring that a risk 
assessment consider, where practicable, the human health risks to 
significant subpopulations who are disproportionately exposed or 
particularly sensitive--a major improvement. The amendment expressly 
provides that the cost-benefit analysis must consider nonquantifiable 
benefits. This includes environmental benefits such as protecting 
species diversity.
  The amendment provides that the cost-benefit analysis need not 
conclude that benefits exceed the costs, but rather justify the costs.
  This reflects the fact that, in some cases, environmental benefits, 
or moral and ethical benefits, may justify a regulation, even if the 
quantifiable cost exceeds the quantifiable benefits. That is a very 
important point. That is, the cost-benefit analysis need not conclude 
the benefits exceed, but rather justify the costs. In many cases, 
environmental, moral, and ethical benefits may justify a regulation, 
even if the quantifiable cost exceeds the quantifiable benefits.
  The amendment contains tighter language, making it clear that it is 
not intended to supersede or otherwise affect any underlying statutory 
standard and is not judicially reviewable.
  These and other changes substantially improve on the original version 
of the amendment. These changes, I believe, will improve environmental 
regulations without causing unnecessary delay or undermining 
environmental protection. As a result, I am pleased to cosponsor the 
amendment.
  Again, I thank the Senator for working constructively. I also thank 
the Senator from New York, [Mr. Moynihan], for his efforts. I do 
believe this is a major improvement.
  I might add, Mr. President, we have a lot of tools in our 
environmental toolbox. There is no one tool that works better than the 
others.
  The analogy I sometimes make is to the many trade tools in our 
international trade toolbox. We have section 301, special 301, super 
301. We have antidumping, countervailing duty provisions. There are 
lots of different tools we have, in addition to bilateral and 
multilateral rights, to address different trade problems in this 
country. We use the one most suitable, according to the circumstance.
  It is the same with respect to environmental legislation, and 
environmental efforts. We have many different environmental tools in 
our environmental toolbox. We have health-based standards; we have 
technology-based standards; we have market-based approaches, like 
provisions of the Clean Air Act. We have nuisance theory, a separate 
tool; environmental justice; principles of federalism; and, of course, 
risk and risk assessment. We have risk assessment here because of 
technological and scientific advances; advances in scientific 
understanding in our country and in other countries.
  I think we must not turn our backs on science, on good science, on 
sound science. Science will help us better determine which areas we 
should address ahead of others; where the greater environmental problem 
lies compared with another effort we might undertake. The more good 
science we have, the more we are able to understand what choices to 
make because we cannot do it all. If everything is a priority, nothing 
is a priority. We are spread too thin. We have to make choices based 
upon the best information, the best evidence available, and certainly 
good, sound science is very helpful.
  We already consider risk assessment, Mr. President, in a whole host 
of efforts that the Environmental Protection Agency undertakes today. 
What are they? Let us just confine ourselves to the Safe Drinking Water 
Act.
  Risk is used in the selection of contaminants. It has to be. This 
legislation repeals the current provision that EPA must find 25 new 
contaminants to regulate every 3 years. That is not based on risk. That 
is repealed. We replace it with a provision that EPA must consider new 
contaminants, study new contaminants, make recommendations to the 
Congress as to which new contaminants to write regulations for and 
choose, at its discretion, regulations for those contaminants that are 
the most dangerous. That is risk. EPA is trying to decide which 
contaminant should more justifiably be regulated compared to others.
  We use risk in setting standards. By definition, EPA has to use risk 
in setting standards. You set the MCLG, that is, the goal. You back it 
down to the standard based upon feasibility.
  By definition, risk is used and cost benefit is used. Risk is used in 
the bill when we delegate the authority for States to develop State 
monitoring programs, subject to certain guidelines, but when a State 
develops a State monitoring plan, by definition, it is deciding which 
parts of the State require monitoring for some contaminants versus 
other parts of the State where the State would monitor for other 
contaminants.
  There might be certain factories, certain industries in some part of 
the State which would lead the State to conclude that there are 
contaminants in the cities and towns which should be monitored to see 
if those contaminants are in the drinking water. That might not be true 
in another part of the State. Again, the State, by definition, is using 
risk assessment.
  What this comes down to is what is the proper way, what is the 
balanced way? How do we use risk without sacrificing human health; 
without sacrificing the environment; without sacrificing public health? 
That is really the question.
  I must say, I think the earlier risk amendment offered by the Senator 
from Louisiana went too far in the wrong direction. It was focusing too 
much on quantifiable costs, not enough on quantifiable benefits and the 
moral, ethical, and human health benefits that may outweigh the 
quantifiable costs and benefits.
  I think, at this stage in our country's history, there is a little 
bit of preoccupation with quantifying everything. After all, we are in 
the computer age. Everybody has spread sheets. There is a tendency to 
quantify. It is important to quantify, but it is also very important to 
take other values, other considerations into account, such as the 
moral, the ethical, the aesthetic, the environmental, as well as the 
human health--certainly the human health value into account. The 
redrafted version clearly takes those values into consideration.
  I think, therefore, it is a good resolution at this stage of a very 
complex issue. This is not the last time we are going to visit risk 
assessment. It is an evolving concept. It is a very important concept, 
but it is an evolving concept. I think, again, the resolution makes 
good sense.
  The PRESIDING OFFICER. Who seeks recognition?
  Mr. CHAFEE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. CHAFEE. Mr. President, one of the problems with this amendment is 
it is 4\1/2\ pages long with a lot of detail. As I mentioned 
previously, we already have the Clinton administration Executive order. 
We already have the section in this bill that deals with this. Now on 
top of it comes these 4\1/2\ pages. The EPA is currently, in some 
instances, more than 2 years behind in issuing its regulations. I do 
not know how it will ever get a regulation out, once they have to start 
following everything that is in this amendment.
  Next, I would like to follow up on what the chairman of the committee 
was just saying about there are other factors involved than risk. He 
mentioned environmental and aesthetic and health. How do you figure the 
value of a wetland, for example? What is the risk assessment? You want 
to fill it in. The risk assessment presumably is going to do some harm 
to wildlife, to waterfowl principally. Somehow you do a risk 
assessment, whatever the value of the waterfowl is. I do not know 
whether you take the value of a mallard duck when shot and served up 
for dinner someplace or how you do it. But there are a lot of factors 
involved in the life that we lead, other than those that can be 
strictly judged by risk.
  It was mentioned that Love Canal proved scientifically there is no 
problem there. You try and tell that to the people who live there next 
to that toxic waste dump and on top of it. You can call it apocryphal, 
you can call it anecdotal, but they had all kinds of evidence of 
premature babies born, and babies born with all kinds of difficulties 
that were not in the normal community. So you say to those people in 
Love Canal, ``Look, here we've got it, it's all down. There's no risk 
here. Stop being foolish.''
  I think there are other factors to be taken into consideration than 
just some risk analysis. Because of the complexity of this 4\1/2\ pages 
when they are over 2 years behind in issuing some regulations now, the 
fact that it solely applies to the environmental community, solely 
applies to EPA, there is no question that in this Senate there is a lot 
of effort to go after EPA. Whether it is the big three, the takings 
amendment, or the risk assessment, or the unfunded mandates, it is 
always focused on EPA. That is unfortunate, because I think EPA has 
done a lot for this country. And over the past 20 years that that 
organization has been in effect, we have a lot for which to be 
thankful.

  Mr. JOHNSTON. Mr. President, I ask for the yeas and nays on the 
amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The Chair recognizes the Senator from 
Connecticut [Mr. Dodd].
  Mr. DODD. Mr. President, I wish to speak on a matter unrelated to the 
amendment that has just been discussed, and I do not want to have it 
interrupt the flow of debate and discussion of the chairman on that. So 
I ask unanimous consent that my discussion and my colloquy with the 
manager of the bill would occur outside of the debate that has just 
transpired or any other remarks that may come pertaining to the 
Johnston amendment.
  The PRESIDING OFFICER. Is there objection?
  Mr. BAUCUS. Mr. President, I might ask how long the Senator wishes to 
proceed.
  Mr. DODD. Just a couple of minutes.
  Mr. BAUCUS. That is fine. I thank the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from 
Connecticut.
  Mr. DODD. Mr. President, if I could, I have already informed the 
manager of the bill of what I am about to speak on and would just 
invite him, and possibly the Senator from Rhode Island, at the 
conclusion of my remarks, to offer any comments on this generally.
  A Supreme Court decision handed down this week, Mr. President, deals 
with a matter that is unrelated to the safe drinking water matter we 
are considering, but one might argue that, since it deals with an 
infrastructure issue in our communities, there is some relationship. I 
speak of the decision in Carbone versus Town of Clarkstown, in which, 
in a 6 to 3 vote, the Supreme Court has concluded that municipalities 
are restrained, to put it mildly, from directing waste disposal in 
their own communities. The decision, the details of which I will not go 
into at great length here, hinges on open competition, which is 
obviously a very important issue and one that we ought to endorse and 
support wherever possible--to ensure the promotion of a free 
competition.
  However, as the communities argued, when it comes to the public 
safety issues associated with solid waste disposal, I would argue that 
municipalities certainly have a strong and vested interest in having a 
say of where and in what manner waste generated within their borders is 
disposed.
  Many of the localities to which I refer have made significant 
investments in recent years to close existing landfills and construct 
state-of-the-art waste disposal facilities to handle waste. In many 
communities in Connecticut and throughout the country, these facilities 
are typically designed to accommodate whatever additional capacity will 
be needed in the future. This combination of excess capacity and 
outstanding bonds creates a very difficult burden for managers of these 
waste disposal facilities. They need to be able to count on a minimum 
volume of waste to be processed at their facility in order to ensure 
that the plant will be financially viable.
  The citizens of my State have a real stake in the success of these 
facilities, as do citizens in other communities. These disposal sites 
often represent the most significant state-of-the-art, environmentally 
friendly waste disposal technologies. Alternatives to these facilities 
could expose--and have in the past--local populations to unnecessary 
public health risks. Furthermore, local taxpayers are liable to the 
bondholders of these facilities. If the facilities fail, they are stuck 
holding the bill.
  So I do not expect, nor would I even suggest, that an amendment ought 
to be offered here. This is a complicated matter. A 6-to-3 decision is 
not insignificant, but it is going to pose some very important 
questions when the Clean Water Act, I presume, comes up.
  So I just wanted to raise this issue this afternoon. The 
distinguished Senator from Montana and the Senator from Rhode Island 
are expert in these areas. I did not want to miss an opportunity during 
the consideration of the safe drinking water bill to raise this issue 
and urge them in their respective jurisdictions to look at this matter.
  Hopefully, Mr. President, before this session is over, an amendment 
or some legislation might be offered to deal with it. This poses a 
significant financial exposure to many communities, not to mention the 
legitimate environmental issues that go along with it. The decision has 
raised important questions about competition and the ability of the 
communities to deal with health and safety questions in their own 
jurisdiction.
  I ask the managers of the bill to take a look at this. I am sure they 
already have, or the staffs have informed them. Again, I have no 
amendment to offer. I know the attorney general of the State of 
Connecticut, Richard Blumenthal, is very knowledgeable on this subject. 
In fact, ironically, he clerked for Henry Blackmun, who was one of the 
dissenting Justices in this matter, along with Justice Sutter, from New 
Hampshire, and Chief Justice Rehnquist. They were the three dissenting 
voices on this matter. It is kind of an interesting group of 
dissenters, if you will, in terms of their points of view.
  But I ask them to look at it and consider how we might address it, if 
we should address it. I am sure there will be some diverse opinion even 
on that question. But, again, I did want to raise this matter with them 
today in the hopes that before the session is over we might address the 
issue.
  I thank the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Montana.
  Mr. BAUCUS. Mr. President, the Senator from Connecticut has raised a 
very important issue as a consequence of the recent Supreme Court 
decision which essentially overruled States' efforts to direct that 
solid waste go to their own local incinerators. It was tied in with a 
related issue, namely, the ability of States to control and limit the 
shipment of out-of-State solid waste. We are talking about garbage 
here, plain, simple, garden variety garbage. This is quite a 
contentious issue, as we all know, essentially because almost every 
State exports and imports garbage. There are a lot of communities in 
our country that do not, however, want new landfills constructed in 
their backyard. They would rather the garbage be dumped, if you will, 
someplace else.
  It gets to the question of State's rights. It gets to the question of 
the commerce clause in the Constitution. It is quite complicated. It is 
unfortunate that the Congress has not yet resolved this issue. I think 
we are getting closer to resolution of how to handle the shipment of 
interstate garbage, and I say that because the flows of interstate 
garbage are starting, for some States, to diminish.
  The Senator from Indiana is not here, but Indiana used to be a major 
importing State. Now much less garbage is being shipped into Indiana 
for various reasons. First, one of the major exporting States is 
starting to take better control of its own garbage and handling it 
within its own borders. And second, stiffer regulations with respect to 
landfills make it more expensive to ship garbage across the country 
into some other State.
  My basic view on all this, Mr. President, is that we should work very 
diligently to craft a solution which encourages States to take care of 
their own garbage. I think it is important to encourage a conservation 
ethic, a recycling ethic, an ethic where people are more responsible 
and States are more responsible for the garbage they generate and not 
necessarily dump it in some other State.
  Again, it is complex. The Supreme Court has ruled generally in this 
whole area that, under the commerce clause, with respect to not only 
flow control but interstate garbage shipments, it is the Congress which 
has the authority, in fact virtually sole authority, to decide, so it 
is incumbent upon us as Members of the House and Senate to decide how 
to resolve this issue.
  It is my hope, frankly, that there might be some silver lining in 
this decision and that the silver lining be a greater impetus to cause 
Senators to work out an agreement.
  I am very thankful that the Senator from Connecticut has brought this 
issue to the floor. I urge those Senators who are most concerned about 
flow control, which is the subject of the Carbone decision, as well as 
those Senators who are concerned about interstate garbage shipments, to 
sit down and talk. For a long time, I have been trying to get these 
Senators to sit down and talk. They just find it hard to sit down and 
work out a compromise. Because of the rules of the Senate, it is 
incumbent that we reach a resolution; reach a compromise. Again, I 
thank the Senator for raising this issue regarding the committee's 
efforts to work to resolve this issue. The Congress has the obligation, 
under the Constitution, to resolve it.

  Mr. CHAFEE. Mr. President, I would like to join in congratulating the 
Senator from Connecticut for bringing this decision to our attention 
again.
  The problem is he has it in his State. I have it in my State. You 
have these communities invest in, say, an incinerator because they want 
to do the job right. They are following every regulation. They want to 
clean up the town. They are not going to ship it out of the State. All 
of these things they follow faithfully, and they float the bonds to pay 
for the construction of the incinerator. They have to depend on a 
certain flow of this garbage and trash to come. So they quite 
rightfully enact certain restrictions that everything within their town 
must come to this one incinerator to guarantee the bonds so that they 
can pay for it. It all makes sense.
  Now, in comes this decision that says they cannot do it. It is very, 
very troublesome. I know that in the Senator's State he has already a 
group of incinerators that are running into some financial 
difficulties. We are in the same situation to some degree.
  So it is something that I feel strongly about. I think it behooves 
all of the Senators that do care, to keep after us so that we will 
pursue it with the diligence that it requires.
  Mr. DODD. Mr. President, just to conclude, let me thank both my 
colleagues from Rhode Island and Montana. The Senator from Rhode Island 
has it exactly right. As the Senator from Montana knows, we are trying 
to address the issue of shipping garbage around; encouraging these 
towns to handle their own wastes. To some, an incinerator conjures up a 
billowing, stenchy smoke, to put it mildly. A lot of them are very 
sophisticated and look like some sort of a high-technology plant, 
rather than the traditional landfill or dump site; very expensive.
  As the Senator from Rhode Island absolutely has it on point, they 
have to be able to guarantee that they can pay for these bonds. So the 
flow is coming in.
  So trying to manage, rather than shipping it off to Indiana--and we 
know how our colleague, Senator Coats from Indiana, feels, and how 
strenuously he feels about garbage being sent to Indiana. Competition 
is not an illegitimate point. In interstate commerce it is a very 
legitimate one. How you balance competition with the safety and health 
questions is a hard one.
  But I am very grateful to both of them for their expressions of 
interest in the subject matter, and look forward to working with them 
on this issue.
  Mr. ROBB addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from 
Virginia, [Senator Robb].
  Mr. ROBB. Mr. President, I thank you.
  Mr. President, I send an amendment to the desk.
  The PRESIDING OFFICER. The Chair advises the Senator from Virginia 
that we have a pending amendment before the Senate. Is there objection 
to setting aside the pending amendment?
  Mr. ROBB. I ask unanimous consent to set the pending amendment aside 
temporarily.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 1726

   (Purpose: To establish a hardship community demonstration program)

  Mr. ROBB. Mr. President, I send an amendment to the desk for myself 
and Senator Warner, and I ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Virginia [Mr. Robb], for himself and Mr. 
     Warner, proposes an amendment numbered 1726.

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

       On page 141, between lines 2 and 3, insert the following 
     new subsection:
       (g) Hardship Community Demonstration Program.--Section 1444 
     (42 U.S.C. 300j-3) is amended by adding at the end the 
     following new subsection:
       ``(e) Hardship Community Demonstration Program.--
       ``(1) In general.--The State agency administering a loan 
     fund pursuant to part G in the State of Virginia (referred to 
     in this subsection as the `State agency') may conduct a 
     program in accordance with this subsection to demonstrate 
     alternative approaches to intergovernmental coordination in 
     the financing of drinking water projects in rural communities 
     in southwestern Virginia that are experiencing severe 
     economic hardship.
       ``(2) Regional assistance fund.--
       ``(A) Establishment.--The State agency may establish a 
     regional endowment fund (referred to in this subsection as 
     the `regional fund') to assist in financing projects that are 
     eligible under this subsection.
       ``(B) Use of regional fund.--The State agency shall invest 
     amounts in the regional fund and shall use interest earned on 
     amounts in the regional fund to pay a portion of the non-
     Federal share of a Federal grant to assist a project that is 
     eligible under this subsection. Interest earned on amounts in 
     the regional fund shall not be considered to be Federal 
     funds.
       ``(C) Deposits to regional fund.--
       ``(i) In general.--Notwithstanding any other provision of 
     this title, the State agency may deposit into the regional 
     fund $2,000,000 from funds made available pursuant to section 
     1472 for each of fiscal years 1994 through 1997, if there are 
     commitments to deposit into the regional fund a total of not 
     less than 25 percent of that amount from non-Federal sources.
       ``(ii) Lesser amount.--Notwithstanding clause (i), the 
     State agency may deposit into the regional fund an amount 
     less than $2,000,000 from funds made available pursuant to 
     section 1472, if the amount deposited is equal to 3 times the 
     amount committed to be deposited into the regional fund from 
     non-Federal sources.
       ``(3) Eligibile projects.--
       ``(A) In general.--Assistance provided under this 
     subsection shall meet the requirements of subsections (a), 
     (b), and (c) of section 1473.
       ``(B) Eligible recipients.--Assistance under this 
     subsection shall be available only--
       ``(i) for a project that serves a disadvantaged community 
     (as defined in section 1473(e)(1)); and
       ``(ii) to a public water system located, in whole or in 
     part, in Lee County, Wise County, Scott County, Dickenson 
     County, Russell County, Buchanan County, Tazewell County, and 
     the city of Norton, Virginia.
       ``(4) Advisory group.--The State agency shall establish an 
     advisory group, including representatives of jurisdictions 
     identified in paragraph (3)(B)(ii) and other appropriate 
     parties, to assist the State agency in setting priorities for 
     the use of funds under this subsection. The advisory group 
     shall include a representative of Mountain Empire Community 
     College, Wise County, Virginia.''.
       On page 141, line 3, strike ``(g)'' and insert ``(h)''.
       On page 141, line 13, strike ``(h)'' and insert ``(i)''.

  Mr. ROBB. Mr. President, I am here to discuss a proposal that the 
Virginia Senators would like to include in the reauthorization of the 
Safe Drinking Water Act.
  I understand it has either been cleared or, with the exception of one 
or two words, is now finally being cleared by both sides.
  The Safe Drinking Water Act focuses on improving the quality of 
drinking water.
  Our amendment addresses a more basic issue: those who cannot get 
drinking water at all.
  Mr. President, when you turn on a tap here in the Capitol, or in our 
homes, water comes out.
  It is so automatic we do not even think about it.
  But when you turn on some taps in Dickenson County, VA, you get a 
thick, yellow-orange liquid. It may contain some water; it certainly 
contains a number of other compounds. It even comes out of the ground 
that way. For people there, water comes not from a tap, but in jugs, 
pans, or however else you can carry it from water ditches, cisterns, 
rain barrels, or neighbors' homes and businesses with potable supplies.
  With a small bottle, you can brush your teeth. To take a bath 
requires several trips to the store, and heating many gallons of water 
on the stove. It is like 19th-century America--except this situation 
exists today, on the verge of the 21st century.
  The same story is repeated in many communities in the southwestern 
portion of Virginia, with no access to water and it is time to do 
something to correct this deplorable situation.
  While S. 2019 provides for State-administered revolving loan funds 
and grants, it will not remove the barrier which prevents small 
communities in southwest Virginia from utilizing Federal water 
assistance resources. Let me explain.
  This region of my State is less concerned about improving the quality 
of its water than it is in getting water to households in the first 
place. In isolated areas where wells are now dry, families are hauling 
water, or using water from cisterns or ditch lines.
  While southwest Virginia has produced coal and helped this Nation to 
reduce its dependence on foreign energy sources, its future well-being 
has been threatened by destruction of its water supplies. This rural, 
sparsely populated area of the Commonwealth has been mined for coal for 
over 100 years. Unlike any other part of the State, it has experienced 
a serious degradation of water quality and supply as a byproduct of the 
very industry on which its economic health is dependent.
  Today, the Virginia Division of Mined Land Reclamation estimates that 
it would require $120 million to restore water to households whose 
water supplies have been degraded by coal mining predating 1977.
  I believe it is important to note that the Federal Government has 
recognized the needs of these small and rural communities by 
establishing programs, such as those within the Rural Development 
Administration, the Appalachian Regional Commission, and the U.S. 
Department of Housing and Urban Development, to assist in developing 
water projects. These programs offer Federal grants which require a 
non-Federal match. Despite the availability of these grants, many small 
communities have not had access to these Federal resources, because 
they are unable to secure the necessary funds to meet the non-Federal 
fund requirements. In these instances, the Federal dollars fade away 
and communities are left without assistance.
  My amendment is simple. It encourages the State to undertake 
alternative approaches to intergovernmental coordination in financing 
drinking water projects in rural communities in southwestern Virginia 
experiencing severe economic hardship.
  This amendment would authorize the Commonwealth of Virginia to set up 
an endowment within the context of its revolving loan fund program and 
use the interest earned from the endowment fund to help rural areas 
meet the non-Federal fund requirement of Federal water grant programs. 
The amendment would authorize $7 million for the establishment of the 
new funding source.
  The main benefit of this amendment is that it would enable small 
communities to take advantage of other existing Federal funds for water 
projects. The project would also provide an opportunity for 
experimentation with securing non-Federal financial support for 
financing public water systems in small communities.
  I cannot express enough how important this endowment fund is to those 
Virginians of the southwestern part of the Commonwealth. This is an 
effort that the local and State representatives have been advocating 
for years. Most of us take the availability of water for granted. We do 
not have to think about whether there will be water to drink, water to 
bathe in, or water to wash our children's clothes in. This is not the 
reality that southwest Virginians face every day.
  This amendment will let them know that we are willing to make a 
commitment to provide adequate access to water and I would urge my 
colleagues to accept this amendment.
  Mr. President, I yield the floor.
  Mr. BAUCUS. Mr. President, the Senator's amendment, which is aimed at 
solving a problem in southwest Virginia, is basically for a community 
that needs help and is somewhat depressed. I understand that they are 
either present or former coal mining communities, communities that are 
just having a hard time making ends meet and certainly need help under 
the Safe Drinking Water Act.
  The amendment essentially provides that up to $8 million in the 
States' own revolving loan fund may be used to help capitalize the 
fund, the interest of which will be used to help meet the non-Federal 
portion, and other Federal assistance to address problems. In addition, 
the allocation would be discretionary; that is, up to the discretion of 
the State of Virginia.
  I think it is an amendment that the committee can accept.
  Mr. CHAFEE. Mr. President, it is my understanding that Senator Warner 
is a cosponsor of the amendment, am I correct?
  Mr. ROBB. The Senator from Rhode Island is correct.
  Mr. CHAFEE. I know that when I talked with Senator Warner, he was 
enthusiastic about this amendment. We have no objections on this side. 
I think it is a good amendment, and I commend the authors, Senators 
Robb and Warner.
  Mr. ROBB. I thank the chairman and ranking member of the committee 
for their consideration.
  I ask for action on this amendment at this time.
  The PRESIDING OFFICER. Is there further debate?
  The question is on agreeing to the amendment.
  The amendment (No. 1726) was agreed to.
  Mr. CHAFEE. Mr. President, I move to reconsider the vote.
  Mr. ROBB. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           oil pollution act

  Mr. DOLE. If the Senator from Montana would yield. I, too, have an 
amendment on the list with respect to the Oil Pollution Act which I 
would like to offer.
  Mr. BAUCUS. Yes, as I understand it, the amendment deals with 
modifying the definitional scope of the term ``offshore facility'' in 
the context of identifying parties for oilspill financial 
responsibility. Is that correct?
  Mr. DOLE. Yes, that is correct. I am particularly concerned that the 
rulemaking currently underway at the Minerals Management Service will 
force facilities, that were never intended to provide evidence of 
financial responsibility, to comply with the provisions of the Oil 
Pollution Act.
  Mr. CHAFEE. I am well aware of this issue. I know our small marina 
operators in Rhode Island are concerned that their facilities would be 
defined as ``offshore'' and thus obligated to provide evidence of 
financial responsibility up to $150 million.
  Mr. BAUCUS. I agree, there are questions with respect to particular 
definitions under the act. Although my position has been to let the 
rulemaking go forward unfettered by legislative action, I understand 
the uncertainty created by the current situation. Yet, a piecemeal 
approach to resolving this here, without any real review by the 
Environment and Public Works Committee would do a disservice to the 
massive amount of time that went into crafting the oil pollution 
legislation in 1990. The issue merits greater attention.
  Mr. DOLE. I ask then if the chairman and the ranking member would 
work with me on a more appropriate vehicle than the measure before us 
to resolve this. Would that be agreeable?
  Mr. BAUCUS. I would be more than willing to work with the Senator.
  Mr. CHAFEE. I would be happy to work with the Republican leader as 
well.
  Mr. DOLE. With that commitment, I thank the chairman and the ranking 
member and withdraw the amendment.
  Mr. BAUCUS. I thank the Senator.
  Mr. DOLE. Mr. President, last August the Minerals Management Service 
published an advanced notice of proposed rulemaking to implement the 
Oil Pollution Act of 1990. I understand it received a record 1,700 
comments.
  The majority of these comments related to the question of what was an 
offshore facility. An offshore facility has unlimited liability for 
cleanup and must meet a $150 million financial responsibility 
requirement just to operate.
  The Oil Pollution Act contains a sweeping definition of ``offshore 
facility'' as, ``any facility of any kind located in, on or under the 
navigable waters of the United States * * * .''
  In its preliminary interpretation of the law, the MMS has suggested 
that all facilities that fit into that broad definition would be 
required to meet the $150 million requirement. It is my view that 
Congress never intended to require every, small Kansas oil producer, 
marina, service station, or farmer with a fuel tank on his property to 
purchase $150 million of insurance.
  Given current court interpretations of ``navigable waters of the 
United States,'' I am concerned that thousands of small businesses that 
are hundreds of miles inland may be classified as ``offshore 
facilities'' if the MMS interpretation stands.
  Mr. President, it is my view that under the law it is ``responsible 
parties'' not ``offshore facilities'' that are the ones which must 
provide evidence of financial responsibility.
  This amendment, which I will offer at a later time, will clarify that 
Congress means to limit financial responsibility provisions of the 1990 
Oil Pollution Act to only responsible parties whose facilities are 
located in the traditionally recognized offshore region. It amends the 
responsible party definition to require evidence of financial 
responsibility from only those who operate facilities licensed or 
permitted under the Outer Continental Shelf Lands Act or comparable 
State laws governing or exploring for, drilling for, producing or 
transporting oil on submerged lands.
  This amendment does not change in any way the requirement that 
everybody who handles oil to prevent or cleanup oil spills nor does it 
change their legal liability in these instances. It is a sensible 
clarification of the law.
  I ask unanimous consent that the text of the amendment be printed in 
the Record.
  There being no objection, the amendment was ordered to be printed in 
the Record, as follows:

       At the appropriate place in the bill, insert the following 
     new section:

     SEC.   . OIL POLLUTION ACT OF 1990.

       Section 1001(32)(C) of the Oil Pollution Act of 1990 (33 
     U.S.C. 2701(32)(C)) is amended--
       (1) by striking out ``applicable State law or'' and 
     inserting in lieu thereof ``applicable State law relating to 
     exploring for, drilling for, producing, or transporting oil 
     on submerged lands in accordance with a license or permit 
     issued for such purpose, or under''; and
       (2) by striking out ``43 U.S.C. 1301-1356'' and inserting 
     in lieu thereof ``(43 U.S.C. 1301 et seq.),''.

  Mr. BAUCUS. Mr. President, I ask unanimous consent that the Senator 
from Vermont be allowed to address the Senate 4 minutes as in morning 
business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Vermont is recognized.
  Mr. LEAHY. I thank the Chair.
  (The remarks of Mr. Leahy pertaining to the introduction of 
legislation are printed in today's Record under ``Statements and 
Introduced Bills and Joint Resolutions.'')

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