[Congressional Record Volume 141, Number 78 (Thursday, May 11, 1995)]
[Senate]
[Pages S6477-S6485]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
INTERSTATE TRANSPORTATION OF MUNICIPAL SOLID WASTE ACT
The Senate continued with the consideration of the bill.
Mr. CHAFEE. Mr. President, I ask unanimous consent that the pending
amendment be set aside.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 758
Mr. CHAFEE. Mr. President, on behalf of Senators Dodd and Lieberman,
I send an amendment to the desk and ask for its immediate
consideration.
The PRESIDING OFFICER. The clerk will report.
The bill clerk read as follows:
The Senator from Rhode Island [Mr. Chafee], for Mr. Dodd,
for himself and Mr. Lieberman, proposes an amendment numbered
758.
The amendment is as follows:
On page 62, line 4, after the words ``public service
authority'', add ``or its operator''.
Mr. CHAFEE. Mr. President, this is a technical amendment, obviously.
It is needed to be consistent with the language on page 61, line 18 of
the legislation.
The PRESIDING OFFICER. Without objection, the amendment is agreed to.
So the amendment (No. 758) was agreed to.
Mr. BAUCUS addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the Senator from Montana.
Mr. BAUCUS. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. CHAFEE. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Inhofe). Without objection, it is so
ordered.
flow control
Mr. DODD. Mr. President, I would like to engage in a colloquy with
Senator Chafee, the chairman of the Environment and Public Works
Committee and Senator Baucus, the committee's ranking member, regarding
the intent of S. 534 with respect to flow control.
Is it the intent of this bill to allow for the refinancing of public
debt for waste management facilities where only the interest rate would
change, and not the amount or maturity date of the bond?
Mr. CHAFEE. Yes, that is the intent of the bill.
Mr. DODD. Is this the understanding of the Senator from Montana?
Mr. BAUCUS. Yes, that is my understanding as well.
flow control and free market issues
Mr. SANTORUM. Mr. President, I seek recognition for the purpose of
engaging in a colloquy with the distinguished Senator from New
Hampshire, Senator Smith, the manager of S. 534.
First, may I congratulate my colleague on his skillful handling of
this difficult legislation.
Second, it is that very difficulty on which I would like to focus in
this colloquy.
I think my colleague would agree with me in my characterization of
this legislation as statutory interference with the commerce clause of
the Constitution of the United States. This interference comes as a
result of the Carbone versus Clarkstown decision, which has caused
problems with certain public facilities financed by revenue bonds.
Carbone invalidated State and local laws which create a solid waste
monopoly for those facilities. And, of course, there is the continued
desire to come to grips with the problem of interstate transfer of
solid waste. I am especially aware of this problem because my own State
of Pennsylvania has been the unwilling recipient of solid waste
exported from New Jersey and New York, in particular.
Thus, we have a clash between the fundamental wisdom of the commerce
clause and the practical effects of the interstate trade in solid
waste. May I ask my colleague from New Hampshire the following
question?
Is it fair to state that he has attempted to craft legislation which
would interfere as little as possible with the commerce clause and
thereby he would try to protect the free market where it has worked?
Mr. SMITH. I have stated before that I am not in favor of flow
control. Flow control is anticompetitive. But it is only fair and
equitable that communities that have indebted themselves--completely
within the law prior to the Supreme Court decision--must not be left to
suffer the consequences of financial failure. The outstanding municipal
bonds that total more than $20 billion must be honored and the
communities' financial stability must be maintained. However, only
those facilities with bonded revenues are given grandfather coverage
under this bill. Any municipality indebted after the Carbone decision
is not and will not be protected.
The free market must prevail. Rather than assisting with the creation
of yet another bloated Government bureaucracy, we should be encouraging
the establishment of a healthy free market, one in which competition
keeps prices low, offers consumers better services, and disposal
techniques are state-of-the-art.
Mr. SANTORUM. Further, it appears to me that the interstate title of
this legislation gives my Commonwealth of Pennsylvania the tools it
needs to prevent abuse of our resources and environment. Could my
colleague comment on that?
Mr. SMITH. Yes, the interstate title gives the Governor of
Pennsylvania and the Governors of other affected States authority to
ensure that their States do not continue as unabated dumping grounds
for States which do not act to site their own disposal capacity.
Mr. SANTORUM. Last, with regard to title II, flow control, may I
inquire of my colleague whether this legislation imposes flow control
or in any way makes it mandatory and thereby suppresses the free
market?
Mr. SMITH. This legislation does not impose flow control. Flow
control is fundamentally incompatible with the principles of free
enterprise, market competition, and the best interest of the consumer.
Requiring the use of flow control would be a step backward in the
handling of municipal solid waste. This bill is designed specifically
to protect the bond holders and commitments previously made. The free
market is not broken, and with the inclusion of a 30-year sunset
provision, the free market will once again take over.
Mr. SANTORUM. Based on the response of my colleague, may I validly
draw the following two conclusions?
First, this legislation allows the continuation of flow control as
previously enacted under State law under certain conditions but not
require or mandate flow control.
Second, it is the intention of the distinguished subcommittee
chairman that this legislation not be used in and of itself as an
argument to suppress the free market.
Mr. SMITH. My colleague from Pennsylvania is correct in his
conclusions regarding the spirit of the legislation. Flow control will
continue under certain conditions but is not required or mandated. As I
have said before, the free market must be allowed to prevail.
Mr. SANTORUM. I thank my distinguished colleague and again commend
him for so ably discharging this difficult responsibility.
Mr. DASCHLE. Mr. President, I am fortunate to come from a State with
[[Page S6478]] sparsely populated expanses of some of the most
beautiful land in this country. States like South Dakota have a special
interest in the legislation before the Senate today, as it will
directly affect their future.
The legislation, S. 534, amends the Solid Waste Disposal Act to
provide important authority for States and local governments to better
control the transportation of municipal solid waste between and within
States.
The time has come to enact this legislation. States and local
government are facing increasing challenges in the responsible
regulation of municipal waste management. Interstate shipments of waste
have been growing in recent years. Between 1990 and 1992, interstate
shipments of waste grew by 4 million tons--a 25% increase. Currently,
about 15 million tons of municipal waste is transported between States
for treatment and disposal, much of it from densely populated regions
to less populated areas.
Moreover, the U.S. Supreme Court has ruled that unless Congress acts
on this issue, States and local governments can have no meaningful role
in controlling the movement of waste into and within their borders.
The combination of increasing interstate shipments of municipal waste
and recent Supreme Court decisions understandably has created concern
among States like South Dakota, who fear that without authority to
restrict unwanted imports of municipal waste, they will become the
dumping ground for other, more heavily populated areas.
In addition, Congress has a responsibility to help protect the
investments made by towns across America in municipal waste management
facilities--investments that have been placed in jeopardy by the
Supreme Court's recent Carbone decision.
The temptation can be great to ship waste to the more remote regions
of our country. But some of these lands are fragile and are home to
some of our country's greatest natural assets. In South Dakota alone,
the geological wonderland of the Badlands, the expansive prairie, and
the majestic Black Hills are examples of areas that deserve protection
from the designs of anyone who would use them for waste disposal.
The responsibility for disposing trash produced by large urban areas
should be confronted and met by the citizens and community leaders who
live there. Rural States should never be considered as a waste
management option, unless they willingly choose to make their land
available for that purpose. In the end, the choice must belong to the
State and local governments that would bear the long-term environmental
consequences of waste disposal.
This bill addresses the rights and responsibilities of States and
local governments to achieve their own environmental and economic
objectives. It is about State and local self-determination. The
interstate waste provisions of this bill represent a delicate balance
between States that import and export waste. It is a step in the right
direction because it encourages States to take responsibility for
managing the waste they generate, rather than sending it elsewhere. Out
of sight and out of mind will not work when it comes to management of
municipal solid waste, particularly if it means leaving it within the
sight and on the minds of those who do not want it.
Reduce, reuse, and recycle is a better solution. It represents a
philosophy that more States will have to adopt as a result of this
bill.
Like most legislation, this bill will not completely satisfy the
objectives of every State or local government. Some States, like South
Dakota, would like, and I believe deserve, even greater authority to
prevent imports of waste. Other States, which with an interest in
exporting municipal waste, would prefer to see fewer restrictions.
Likewise, I am aware that while there are cities and towns that would
prefer to have greater and more enduring authority to regulate flow
control, there are Members of this body who feel that the free and
unfettered competition of the marketplace should be given a greater
opportunity to determine the flow of municipal waste.
This bill strikes a reasonable balance between these competing
interests, one that I believe is essential if we are to move forward
and enact meaningful legislation. It gives States and local governments
the ability to promote their own environmental goals and meet important
financial obligations. We must pilot a course of responsible
stewardship of our resources. This bill gives States and cities the
power to do just that, and I hope that my colleagues will join me in
supporting this important and timely legislation.
Mr. CHAFEE. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. BINGAMAN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Privilege of the Floor--S. 534
Mr. BINGAMAN. Mr. President, I ask unanimous consent that Anna
Garcia, a fellow in my office, be allowed floor privileges during
consideration of this legislation.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 761
(Purpose: To require the Administrator of the Environmental Protection
Agency to conduct a study of solid waste management issues associated
with increased border use resulting from the implementation of the
North American Free Trade Agreement)
Mr. BINGAMAN. Mr. President, I send an amendment to the desk for
immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The bill clerk read as follows:
The Senator from New Mexico [Mr. Bingaman] proposes an
amendment numbered 761.
Mr. BINGAMAN. Mr. President, I ask unanimous consent further reading
be dispensed.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
At the appropriate place insert the following:
SEC. ____. BORDER STUDIES.
(a) Definitions.--In this section:
(1) Administrator.--The term ``Administrator'' means the
Administrator of the Environmental Protection Agency.
(2) Maquiladora.--The term ``maquiladora'' means
an industry located in Mexico along the border between the
United States and Mexico.
(3) Solid waste.--The term ``solid waste'' has the meaning
provided the term under section 1004(27) of the Solid Waste
Disposal Act (42 U.S.C. 6903(27)).
(b) In General.--
(1) Study of solid waste management issues associated with
north american free trade agreement.--As soon as practicable
after the date of enactment of this Act, the Administrator is
authorized to conduct a study of solid waste management
issues associated with increased border use resulting from
the implementation of the North American Free Trade
Agreement.
(2) Study of solid waste management issues associated with
united states-canada free-trade agreement.--As soon as
practicable after the date of enactment of this Act, the
Administrator may conduct a similar study focused on border
traffic of solid waste resulting from the implementation of
the United States-Canada Free-Trade Agreement, with respect
to the border region between the United States and Canada.
(c) Contents of Study.--A study conducted under this
section shall provide for the following:
(1) A study of planning for solid waste treatment, storage,
and disposal capacity (including additional landfill
capacity) that would be necessary to accommodate the
generation of additional household, commercial, and
industrial wastes by an increased population along the border
involved.
(2) A study of the relative impact on border communities of
a regional siting of solid waste storage and disposal
facilities.
(3) In the case of the study described in subsection
(b)(1), research concerning methods of tracking of the
transportation of--
(A) materials from the United States to maquiladoras; and
(B) waste from maquiladoras to a final destination.
(4) In the case of the study described in subsection
(b)(1), a determination of the need for solid waste materials
safety training for workers in Mexico and the United States
within the 100-mile zone specified in the First Stage
Implementation Plan Report for 1992-1994 of the Integrated
Environmental
[[Page S6479]] Plan for the Mexico-United States Border,
issued by the Administrator in February 1992.
(5) A review of the adequacy of existing emergency response
networks in the border region involved, including the
adequacy of training, equipment, and personnel.
(6) An analysis of solid waste management practices in the
border region involved, including an examination of methods
for promoting source reduction, recycling, and other
alternatives to landfills.
(d) Sources of Information.--In conducting a study under
this section, the Administrator shall, to the extent
allowable by law, solicit, collect, and use the following
information:
(1) A demographic profile of border lands based on census
data prepared by the Bureau of the Census of the Department
of Commerce and, in the case of the study described in
subsection (b)(1), census data prepared by the Government of
Mexico.
(2) In the case of the study described in subsection
(b)(1), information from the United States Customs Service of
the Department of the Treasury concerning solid waste
transported across the border between the United States and
Mexico, and the method of transportation of the waste.
(3) In the case of the study described in subsection
(b)(1), information concerning the type and volume of
materials used in maquiladoras.
(4)(A) Immigration data prepared by the Immigration and
Naturalization Service of the Department of Justice.
(B) In the case of the study described in subsection
(b)(1), immigration data prepared by the Government of
Mexico.
(5) Information relating to the infrastructure of border
land, including an accounting of the number of landfills,
wastewater treatment systems, and solid waste treatment,
storage, and disposal facilities.
(6) A listing of each site in the border region involved
where solid waste is treated, stored, or disposed of.
(7) In the case of the study described in subsection
(b)(1), a profile of the industries in the region of the
border between the United States and Mexico.
(e) Consultation and Cooperation.--In carrying out this
section, the Administrator shall consult with the following
entities in reviewing study activities:
(1) With respect to reviewing the study described in
subsection (b)(1), States and political subdivisions of
States (including municipalities and counties) in the region
of the border between the United States and Mexico.
(2) The heads of other Federal agencies (including the
Secretary of the Interior, the Secretary of Housing, the
Secretary of Health and Human Services, the Secretary of
Transportation, and the Secretary of Commerce) and with
respect to reviewing the study described in subsection
(b)(1), equivalent officials of the Government of Mexico.
(f) Reports to Congress.--On completion of the studies
under this section, the Administrator shall, not later than 2
years after the date of enactment of this Act, submit to the
appropriate committees of Congress reports that summarize the
findings of the studies and propose methods by which solid
waste border traffic may be tracked, from source to
destination, on an annual basis.
(g) Border Study Delay.--The conduct of the study described
in subsection (b)(2) shall not delay or otherwise affect
completion of the study described in subsection (b)(1).
(h) Funding.--If any funding needed to conduct the studies
required by this section is not otherwise available, the
President may transfer to the Administrator, for use in
conducting the studies, any funds that have been appropriated
to the President under section 533 of the North American Free
Trade Agreement Implementation Act (19 U.S.C. 3473) that are
in excess of the amount needed to carry out that section.
States that wish to participate in study will be asked to
contribute to the costs of the study. The terms of the cost
share shall be negotiated between the Environmental
Protection Agency and the State.''.
Mr. BINGAMAN. Mr. President, this amendment addresses a problem of
increasing urgency in my part of the country, my home State of New
Mexico. That is, the disposition of solid waste, along the United
States-Mexico border.
As the United States and Mexico move further into their trade
relationship under the North American Free-Trade Agreement, increased
development along the border is inevitable. With that development comes
new challenges regarding the transport and disposal of solid waste.
This is not just an issue for the Governments of the United States
and Mexico, it is also an issue for the four border States of
California, Arizona, New Mexico, and Texas. It is one that we need to
deal with in this legislation, and capitalize on the opportunity
offered by NAFTA. We are going to have to plan for this increased
development. This means conducting necessary research on the scope of
the problem.
The amendment authorizes the Administrator of EPA to conduct a study
of solid waste management issues associated with this increased use of
the area along the border, in order that States and localities can
properly plan for waste treatment, transportation, storage and
disposal.
The study will address six key issues. First, planning for additional
landfill capacity; second, related impact on border communities of a
regional siting of solid waste storage and disposal facilities; third,
research on methods of tracking the transportation of materials to and
from industries located along the border; fourth, the need for
materials safety training for workers; fifth, the adequacy of existing
emergency response networks in the border region; sixth, a review of
solid waste management practices in the entire border region.
It is my expectation that the Administrator, in order to fulfill the
requirements of the amendment, would enter into contractual agreements
with other entities such as States and universities and university
consortia.
Mr. President, I am convinced in the long run NAFTA will prove to be
a good movement, a good initiative for economic opportunities for my
home State of New Mexico and for the entire border region.
This is only true if we manage these opportunities correctly and deal
with the potential health and environment problems that the increased
development will bring. This amendment helps to do that.
I urge my colleagues to support the amendment. I understand the
amendment has been reviewed by both the manager and the ranking member,
and that this amendment is accepted.
Mr. CHAFEE. Mr. President, this is a good amendment, and I
congratulate the Senator from New Mexico. It is acceptable to this
side.
Mr. BAUCUS. Mr. President, I agree. The Senator from New Mexico has
consulted with Senators, and I appreciate the approach he is taking.
There is a problem with respect to what he raises.
I urge adoption of the amendment.
The PRESIDING OFFICER. The question is agreeing to the amendment.
So the amendment (No. 761) was agreed to.
Mr. BINGAMAN. 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.
Privilege of the Floor--S. 534
Mr. BAUCUS. Mr. President, I ask unanimous consent that Ken Berg, a
fellow from the office of Senator Boxer, have the privileges of the
floor during consideration of S. 534, and that Linda Critchfield, a
fellow from the office of Senator Lieberman, be allowed on the floor
during consideration of S. 534.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BAUCUS. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. KYL. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 769
Mr. KYL. Mr. President, I ask unanimous consent to lay aside the
pending amendment for the purpose of offering an amendment which is at
the desk.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Arizona [Mr. KYL] proposes an amendment
numbered 769.
Mr. KYL. 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 57, strike line 16 and all that follows through
page 58, line 22, and insert the following:
``(4) Continued effectiveness of authority during
amortization of financing.--
``(A) In general.--With respect to each designated waste
management facility or facilities, or Public Service
Authority, authority may be exercised under this section
only--
``(i) until the date on which payments under the schedule
for payment of the capital costs of the facility concerned,
as in effect on May 15, 1994, are completed; and
``(ii) so long as all revenues (except for revenues used
for operation and maintenance of
[[Page S6480]] the designated waste management facility or
facilities, or Public Service Authority) derived from tipping
fees and other fees charged for the disposal of waste at the
facility concerned are used to make such payments.
``(B) Refinancing.--Subparagraph (A) shall not be construed
to preclude refinancing of the capital costs of a facility,
but if, under the terms of a refinancing, completion of the
schedule for payment of capital costs will occur after the
date on which completion would have occurred in accordance
with the schedule for payment in effect on May 15, 1994, the
authority under this section shall expire on the earlier of--
``(i) the date specified in subparagraph (A)(i); or
``(ii) the date on which payments under the schedule for
payment, as in effect after the refinancing, are completed.
``(C) Any political subdivision of a State exercising flow
control authority pursuant to subsection (c) may exercise
such authority under this section only until completion of
the original schedule for payment of the capital costs of the
facility for which permits and contracts were in effect,
obtained or submitted prior to May 15, 1994.''.
Mr. KYL. Mr. President, the amendment which I offer now will tighten
the flow control provisions of title II to more accurately reflect what
I believe is the committee's intent; namely, to authorize flow control
for a limited period of time to ensure that States and political
subdivisions are able to service the debt that they incurred for the
construction of solid waste management facilities prior to the Carbone
decision.
Flow control is inherently anticompetitive. It was ruled a violation
of the Constitution's commerce clause by the U.S. Supreme Court in the
Carbone case. The Court ruled:
State and local governments may not use their regulatory
power to favor local enterprise by prohibiting patronage of
out-of-State competitors of their facilities.
While Justice O'Connor in a concurring opinion noted Congress' power
to authorize local imposition of flow control, I do not believe it is
in the public interest to sanction these Government monopolies
intrastate, and it could impede competition, particularly for any more
than the minimum amount of time required for State and local
governments to pay off the debt that they incurred prior to the Supreme
Court decision.
So my amendment would authorize flow control authority only until the
debt incurred prior to the Carbone decision is repaid. During the
period for which flow control is authorized, revenues derived from
tipping fees and other fees charged at the flow control designated
facility--these are net of revenues used for operation and maintenance
of the facility, of course--must be used to pay off the debt
obligations.
This amendment would permit the refinancing of debt to allow State
and local governments to take advantage of lower interest rates when
they are available. However, flow control authority would end on the
date on which the original debt would have been repaid or the date on
which the refinanced debt is repaid, whichever is earlier.
Mr. President, it appears to me that flow control has only one
purpose; and, that is, to protect State or local monopolies that have
developed in the disposal of municipal solid waste. That only hurts
taxpayers, and there is no good reason for it.
Flow control does not offer the benefit of added protection for human
health and the environment either. According to a March 1995 report by
the Environmental Protection Agency:
Protection of human health and the environment is directly
related to the implementation and enforcement of federal,
State, and local environmental regulations. Regardless of
whether State or local governments administer flow control
programs, States are required to implement and enforce
federally approved regulations that fully protect human
health and the environment. Accordingly, there are no
empirical data showing that flow control provides more or
less protection.
That is the end of quoting from the EPA report. In other words,
disposal facilities, whether public or private, must meet the same
standards of environmental protection. Flow control does not add to the
environmental protection.
Flow controls do result in substantially increased costs to
communities across the country. That can have negative impacts on the
environment due to the extent that it creates incentives for illegal
dumping. In fact, in a column that appeared in the Washington Times on
March 23 of this year, the mayor of Jersey City, Bret Schundler, noted;
All of the illegal dumping that New Jersey is now suffering
from because of the soaring costs of waste disposal.
In New Jersey, where flow control is in place, the price of disposal
is approaching $100 per ton. That compares to an average of about $35
per ton in areas without flow control.
Although flow controls do not typically add as much as that to the
cost of disposal in other parts of the country, the increased costs can
still be substantial. A study just released by National Economic
Research Associates found that flow controls increase disposal costs on
average $14 a ton, or 40 percent. That is 40 percent, Mr. President,
that flow controls add to the cost of disposal. That is an additional
cost that individuals and businesses must ultimately bear.
For example, again, Mayor Schundler notes that flow control prevents
his community from reducing property taxes or taking advantage of lower
cost alternatives.
That is wrong and it is unnecessary.
Some might say that flow control is needed to ensure sufficient waste
management capacity or to help State and local governments achieve
goals for source reduction, reuse and recycling. Again EPA's answer is
no. In its March report, EPA stated, and I am quoting:
There are no data showing that flow controls are essential
either for the development of new solid waste capacity or the
long-term achievement of State and local goals for source
reduction, reuse and recycling.
What about the necessity of flow control to finance new landfills or
landfill expansions? Again EPA's answer is no. Again quoting:
Flow controls do not appear to have played a significant
role in financing new landfills.
In fact, Mr. President, EPA goes on to note that private landfill
firms have demonstrated their ability to raise substantial capital from
publicly issued equity offerings, indicating that investors are willing
to provide capital for the expansion of landfills without flow control
guarantees. In other words, the private sector is willing and able to
accommodate the demand for landfill capacity.
In some instances, flow control laws have not merely been used to
generate revenues to finance construction and O&M costs but also for
the purpose of funding other activities, like recycling, composting,
and hazardous waste collection, to name a few. That would be fine if
State and local governments were not using the force of law to compel
the use of specified facilities at specified rates, if they competed in
the free market. But they are using statutory authority to compel
certain sites. Users are therefore required, by law, to subsidize other
activities.
To the extent that we are considering limited flow control relief to
help protect State and local investments, the revenues derived should
be used solely for that purpose and not other things. My amendment will
limit the use of revenues to that purpose.
Mr. President, our goal here should not be to preserve
anticompetitive practices but to establish a framework for orderly
transition, to allow limited relief for State and local governments
that had in good faith made commitments based on the law as they
understood it prior to the Carbone decision.
I hope my colleagues will join me in supporting this amendment and
resist efforts to carve out exceptions to protect or extend local
monopoly power. And, Mr. President, for the benefit of my colleagues, I
ask that the full text of Mayor Schundler's column be printed in the
Record.
There being no objection, the article was ordered to be printed in
the Record, as follows:
[From the Washington (DC) Times, Mar. 23, 1995]
The Smelly Truth About Garbage Disposal
(By Bret Schundler)
Last May, in a case called Carbone vs. Town of Clarkstown
the United States Supreme Court held that state-imposed
waste-flow regulations violate the commerce clause of the
Constitution.
This was an important and proper decision.
But today, the Republican-controlled House Commerce
Committee will hold hearings on anti-free-market legislation
that would re-establish the authority of states to set up
government monopolies in garbage disposal. The flow-control
legislation that
[[Page S6481]] will be considered is bad public policy, and
it should be rejected.
To understand how this issue affects you, let's look at the
experience of New Jersey.
Prior to the Carbone decision, New Jersey used the guise of
solid-waste-flow regulation to establish county government
monopolies called ``improvement authorities'' that are given
the power to dictate to mayors where--and at what price--they
must dispose of their municipal garbage. Experience teaches
us that anytime a public or private monopoly controls the
quantity and price of a service, that monopoly will have no
incentive to control costs or improve services. And this is
precisely what has occurred in New Jersey.
Let's look at the issue of cost. The average price for the
disposal of solid waste in America is only $35 per ton. But
in New Jersey, thanks to the establishment of governmental
disposal monopolies, the price is fast approaching $100 per
ton.
Now let's look at the quality of services delivered. The
defenders of the status quo argue that allowing private
disposal sites to compete on the basis of cost is
environmentally unsound. But, in fact, it is easy to regulate
private disposal sites to ensure that proper environmental
standards are maintained. What is not easy to regulate is all
of the illegal dumping that New Jersey is now suffering from
because of the soaring costs of waste disposal.
Apologists for the former Soviet Union used to contend that
government-run industries are more environmentally sensitive
than industries under private control. But we now know that
the reverse is true. Government-controlled industry tends to
be less responsible than private industry, because when
industry and regulator are one in the same, the inherent
conflict of interest is invariably resolved in favor of lax
enforcement of environmental safeguards.
Instead of building and protecting government monopolies,
we should be encouraging the creation of a healthy free
market of properly regulated private disposal firms. These
firms should compete not only on the basis of price, but also
in terms on the basis of price, but also in terms of
environmentally sound disposal techniques. Protected
government monopolies, in contrast, will never have any
incentive to innovate.
The New Jersey Environmental Federation, representing all
of the state's lending environmental organizations, has
joined me and other New Jersey mayors in opposing waste-flow-
control legislation. According to the Federation, New
Jersey's governmental monopoly in waste disposal stifles
``technical innovation, private investment, and market
development for lower cost, environmentally preferable
material recovery and composting technologies.'' The
Federation is right on target.
New Jersey Gov. Christine Todd, Whitman supports the
maintenance of country waste disposal monopolies. This is
because the governor believes that a competitive market would
cause financial chaos. She worries that without having a
guaranteed source of revenue, county improvement authorities,
which have borrowed large sums of money to build
incinerators, could possibly default on their bonds. But
there is a solution to this problem that is much preferable
to the current flawed policy.
Stated simply. New Jersey could issue bonds to pay off the
existing debt that county governments have incurred to build
government disposal facilities. Next the state could
establish a $10-per-ton surcharge on solid waste disposal
fees, which could be used to fully amortize the new bonds in
just 10 years. County disposal facilities, freed of debt
service costs, could immediately drop their rates by a like
$10-per-ton--or more. Municipalities, able to find less
expensive disposal alternatives, could take advantage of the
opportunity, and thereby provide their residents with much-
needed property-tax relief.
In many New Jersey counties, the property-tax relief that
could be realized is substantial. In some counties, market
prices for disposal are than $50-per-ton less than the
governmental monopoly price. After the $10-per-ton surcharge
that would have to be paid to the state, local taxpayers
could still save $40-per-ton of waste generated.
The current system makes no sense. In Jersey City, because
of government monopoly pricing we pay almost 50 percent more
to dispose of our solid waste than does neighboring New York
City, which pays free-market rates to dump at a disposal
facility located just outside Newark, NJ. This is ridiculous!
As a mayor, I'm the one who must collect from property
owners the taxes they pay for garbage disposal. But New
Jersey's waste-flow-control regulations prevent me from
taking advantage of lower priced, more environmentally sound
disposal alternatives.
The effect of these flow-control regulations is to prohibit
me from reducing property taxes for my residents. And when I
have to raise property taxes to pay for skyrocketing disposal
costs, residents do not get angry with the state. Neither do
they direct their ire at the executive director of the county
improvement authority for running a costly, inefficient
government bureaucracy, bursting at the seams with
unnecessary patronage workers. Instead, property owners get
mad at me, because I am the one who must send out the bills
to pay for all of this foolishness.
I know very well why some county governments in New Jersey
support flow-control legislation. It's nice to have a
relatively anonymous place where you can place patronage
hires and generate huge contracts for law firms and
consultants, who subsequently get tapped for political
campaign contributions. This arrangement is especially nice,
in the view of some county officials, since it is the mayors,
and not county executives, who will get the blame for soaring
property taxes.
But we should realize by now that government never works
well when power is insulated from accountability. Good
government requires that power be kept as close to the people
as possible. Good government also requires that a clear
demarcation of responsibility exist between different levels
of government, so that the people know whom to throw out of
office for unnecessarily inflating service costs or degrading
the environment. Flow control legislation flies in the face
of these principles. It is not good government.
America was built on the principles of the free market,
where there are natural incentives for the providers of goods
and services to be efficient and to keep prices down. There
isn't any legitimate reason not to allow these same market
forces to ensure that municipalities have the freedom to
dispose of garbage by taking advantage of the least
expensive, most environmentally sound alternatives.
With Congress now looking at school choice and other forms
of empowerment as the way to reform our education system and
enhance the provision of essential government services, it
would be a travesty to allow states to move away from free-
market solutions in the area of garbage disposal.
Mr. KYL. Mr. President, let me conclude by summarizing in this
fashion.
What we are dealing with here is municipalities coming to Congress
and asking for relief from a Supreme Court decision which said that
what certain States had done in the past, limiting the free flow of
interstate commerce, in this case in treating garbage, solid waste, was
an unconstitutional infringement on the commerce clause, and so unless
the Congress acts, these arrangements that have been entered into by
the States will not be able to proceed in a monopoly fashion. They will
have to compete with the private market. As the EPA report notes, the
private market is quite capable of working in this area.
And so some municipalities have said, well, since we made our
decision on good faith, based upon the law as we knew it, we should at
least be protected to the extent that it takes us to pay off the
investment, to pay off the bonds, and my amendment would grant that
grandfathering authority. We would say to these municipalities,
whatever the length of your bond period is to pay off those bonds, we
will grant you the authority to create a monopoly so you have no
competition, if that is what you want, and you can pay off those bonds.
But you should not be entitled to have a monopoly beyond that point.
What this amendment boils down to, Mr. President, is which side you
are on. Are you for saying that for the period of time that it takes a
municipality to pay off the bonds we should grant this grandfathering
exception, or should we grant even further extensions, and here are the
two that are most frequently cited.
In some cases it is said that a municipality has a contract to accept
waste and dispose of it lasting longer than the period of the bond
repayment. So let us hypothetically assume you have a 20-year bond and
a 30-year contract. They would argue that the length of time for the
monopoly protection should be 30 years, not 20 years. There is
absolutely no logic to that whatsoever.
Once the 20 years has elapsed, the bonds have been paid, the facility
now exists debt free, it ought to be able to compete, for the last 10
years of its contract, with anybody in the private market who comes
along with the necessity of raising the capital to construct a facility
to compete with that municipal facility and then to treat this garbage
at a lesser rate.
In any event, the city has the contract for the remaining 10 years,
and the other contracting party is required to comply with the terms of
the contract. So there are two reasons why there is no reason to extend
the grandfathering protection, monopoly protection, of this legislation
beyond the term that it takes to repay the debt.
No. 1, the party providing the garbage has to fulfill its end of the
contract regardless of what we do, so the municipality is protected in
that regard. And No. 2, the municipality has a free facility, in
effect, a facility that is
[[Page S6482]] now totally paid up. If it cannot compete with the
private market under those circumstances, then there is something
drastically wrong and the Congress should not be creating a monopoly to
permit that to occur.
As I noted, EPA has noted there is neither a problem with
environmental laws nor a problem with generating fees for other
purposes here.
So that is the first argument that is raised, that we should extend
it to the contract period. The other is more amorphous, and that is
that we should extend this to the useful life of the plant. That is in
effect selling the entire concept of the free market down the drain. We
may as well say let us have socialized garbage. If we are saying that
the municipality can have the monopoly protection for the entire life
of the plant, then we are providing no opportunity for competition
whatsoever.
Is it not enough that we allow them the monopoly protection until
they have repaid all of their debts? Is it not enough that a
contracting party would still have to abide by the terms of the
contract and sell its garbage to the city under the terms of that
contract? Are we now being asked to also extend this monopoly power to
the useful life of the plant, whatever they may define that to be? It
is a very unclear definition as to what that is. And there are not very
many plants that are that well planned whose life can be extended
without modernizing the plant. So we want municipalities to do this.
That is fine. So municipalities are asking for virtually unlimited
power.
With that in mind, the committee has wisely said ``enough.'' At 30
years, enough is enough. We will not extend this protection beyond 30
years. That was a wise thing for the committee to do. But I submit the
committee should not have gone that far; that it ought to be sufficient
that the municipality is granted the monopoly protection until all of
its obligations for repayment of the bonds have been satisfied. At that
point, it ought to have to compete along with anybody else. And for us
to grant an exemption beyond that is to do something which the U.S.
Supreme Court has said is violative of the commerce clause of the
Constitution. And our oath requires us not to do that.
That is why, despite the fact that I have no interest in this--my
State is not involved. I have no municipality or county government in
the State of Arizona contacting me on this because we are not a State
that does this. So I have no personal interest in this, or political
interest. But it does seem to me that as Senators we have an obligation
to do what is right as a country. The legislation which the committee
has crafted has very carefully taken care of very severe problems in
very specific situations.
Those States--and I would mention one, New Jersey--have been
accommodated under the committee legislation. It is not necessary to
broaden this exemption any beyond what my amendment would provide for.
So, Mr. President, I would be happy to engage in a colloquy with
anyone who would like to inquire further as to the effect or intent of
my amendment. I intend eventually to call for a vote. I will be very
happy to debate this under a time agreement, starting with whenever
anyone would wish to enter into such an agreement.
But I certainly hope that my colleagues will realize that the
municipalities that need this relief are not in a position to hold
leverage over our head. The U.S. Senate does not have to succumb to
what municipalities would desire or like to have in this regard, but
only that which they need. And that is all that we ought to be granting
them if we are talking about monopoly power in an area where the free
market should work just fine, again, according to the Environmental
Protection Agency.
I yield the floor at this point. If no one wishes to examine my views
on this at this point, 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. CHAFEE. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CHAFEE. Mr. President, is there a pending amendment and, if so, I
ask unanimous consent that it be set aside.
The PRESIDING OFFICER. Without objection, it is so ordered.
Unanimous-Consent Agreement
Mr. CHAFEE. Mr. President, I ask unanimous consent that a tabling
vote occur in relation to the pending Kyl amendment at 2:30 p.m. today
and that no second-degree amendments be in order to the Kyl amendment
prior to the tabling vote.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CHAFEE. Mr. President, that vote will occur at 2:30 p.m. on the
tabling motion unless it is vitiated. As it is now, it appears we will
be having that tabling vote at 2:30.
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. CHAFEE. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Kyl). Without objection, it is so ordered.
Mr. CHAFEE. Mr. President, I ask unanimous consent that the pending
amendments be set aside at this time.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 773
Mr. CHAFEE. Mr. President, I send to the desk an amendment on behalf
of Senator Faircloth and 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.
Faircloth, proposes an amendment numbered 773.
Mr. CHAFEE. Mr. President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 59, after line 20, insert the following:
(6) Flow Control Ordinance.--Notwithstanding anything to
the contrary in this section, but subject to subsection (j),
any political subdivision which adopted a flow control
ordinance in November 1991, and designated facilities to
receive municipal solid waste prior to April 1, 1992, may
exercise flow control authority until the end of the
remaining life of all contracts between the political
subdivision and any other persons regarding the movement or
delivery of municipal solid waste or voluntarily relinquished
recyclable material to a designated facility (as in effect
May 15, 1994). Such authority shall extend only to the
specific classes or categories of municipal solid waste to
which flow control authority was actually applied on or
before May 15, 1994. The authority under this subsection
shall be exercised in accordance with section 4012(b)(4).
Mr. CHAFEE. Mr. President, this deals with flow control and it
pertains to a community in North Carolina which had a very specialized
situation. In effect, it is a technical amendment. I urge its adoption.
The PRESIDING OFFICER. Is there further debate on the amendment?
Mr. CHAFEE. Mr. President, this has been cleared on both sides.
The PRESIDING OFFICER. If not, the question is on agreeing to the
amendment.
The amendment (No. 773) was agreed to.
Mr. CHAFEE. 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. LAUTENBERG. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LAUTENBERG. Mr. President, I ask unanimous consent that the
pending amendment before the Senate be set aside for such length of
time as it takes me to offer an amendment which has been accepted by
the other side.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 775
(Purpose: To revise the provision providing additional flow control
authority)
Mr. LAUTENBERG. Mr. 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:
[[Page S6483]] The Senator from New Jersey [Mr. Lautenberg]
proposes an amendment numbered 775.
Mr. LAUTENBERG. 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 58, strike line 23 and all that follows through
page 59, line 20, and insert the following:
``(5) Additional authority.--
``(A) Application of paragraph.--This paragraph applies to
a State or political subdivision of a State that, on or
before January 1, 1984--
``(i) adopted regulations under State law that required the
transportation to, and management or disposal at, waste
management facilities in the State, of--
``(I) all solid waste from residential, commercial,
institutional, or industrial sources (as defined under State
law); and
``(II) recyclable material voluntarily relinquished by the
owner or generator of the recyclable material; and
``(ii) as of Jan 1, 1984, had implemented those regulations
in the case of every political subdivision of the State.
``(B) Authority.--Notwithstanding anything to the contrary
in this section (including subsection (j)), a State or
political subdivision of a State described in subparagraph
(A) may continue to exercise flow control authority
(including designation of waste management facilities in the
State that meet the requirements of subsection (c)) for all
classes and categories of solid waste that were subject to
flow control on Jan 1, 1984.''
Mr. LAUTENBERG. Mr. President, this amendment follows the construct
of this bill by protecting flow control authority that was in effect
before May 15, 1994. Its provisions will sunset in 30 years.
With these limitations or restrictions, the amendment is narrowly
crafted to respond to a very special situation in New Jersey, about
which I spoke on the floor yesterday. I appreciate the willingness of
the committee chairman, Senator Chafee, and the subcommittee chairman,
Senator Smith, to accept this narrowly crafted amendment, which will
avoid the need for New Jersey to export increasing volumes of waste and
will permit the State to meet its self-sufficiency goals by the year
2000.
While I cannot say that I share the enthusiasm that some have for the
structure created by this bill, I, nevertheless, accept it. At present,
I intend to support the bill and vote for it. I say at present,
obviously, because if there are any amendments that are new and
adopted, I reserve the right at that point to reexamine my decision.
At present, as I say, I intend to support the bill. I hope and trust
that the bill itself will quickly be adopted in the Senate, in
conference, and sent to the President to be signed into law. Otherwise,
New Jersey and many other States face a potential waste disposal crisis
and serious financial disruption of the plans and the indebtedness that
exists out there.
As I earlier said, it has been my understanding that the chairman of
the subcommittee, who I worked very closely with on several
environmental matters, Senator Smith, has accepted this amendment. I
ask him for any comments he wants to make.
Mr. SMITH. Mr. President, we have accepted the amendment. The Senator
from New Jersey has mentioned his amendment is a special situation in
New Jersey. We are aware of this. It was the spirit and intent of the
compromise language in the bill to deal with those special
circumstances that New Jersey has, being an entire system for flow
control.
Even though we have some philosophical disagreements on the subject
of flow control, part of the very carefully crafted compromise was that
we would do our best to deal with those folks who had made certain
commitments in this rather unique situation in New Jersey.
This side has no objection to the amendment.
Mr. LAUTENBERG. Mr. President, I thank the subcommittee chairman.
Mr. President, this amendment recognizes the unique situation in New
Jersey. New Jersey is the only State in our Nation in which all
municipal solid waste is now flow controlled and has been flow
controlled for over a decade. This extensive use of flow control was
necessary in order to reduce our exports of garbage to other States.
And it has worked.
New Jersey has decreased exports by 50 percent since 1988 and we are
on target to be self-sufficient by the year 2000.
However, we do face some problems in terms of our existing
facilities. Although New Jersey already recycles 53 percent of its
waste stream, New Jersey exports 2 million tons of waste. There is not
sufficient capacity in my State today to handle that volume. Facilities
will be needed if we are to further reduce exports and become self-
sufficient.
Therefore, New Jersey will need to build new facilities. Without flow
control, however, it will be impossible to provide the needed capacity.
Lenders will not finance new facilities when it appears waste can
easily and cheaply be exported. Without this amendment, therefore, it
will be impossible to handle the waste volumes that we do export and we
will continue to export more waste. That is not what Senators from
other neighboring States want. And it is not what New Jersey wants.
New Jersey has attempted, probably more than any other State, to
limit its exports. Title I, to restrict exports of solid waste, and
further restrictions discussed by Mr. Coats, will make it harder to
send waste across State lines.
Under my amendment, New Jersey will be able to live with some
interstate restrictions because the amendment will protect the system
New Jersey has worked so hard to develop. Under this amendment, title I
restrictions on interstate shipments will not be a problem to my State.
And the title II flow control provisions will allow facilities to be
built so that New Jersey can control and dispose of its waste.
This amendment follows the construct of the bill in that it protects
flow control authority that was in effect before May 15, 1994. It will
sunset in 30 years.
With these limitations and restrictions, this amendment is narrowly
crafted to respond to the very special situation in New Jersey that I
spoke of yesterday on the floor.
I appreciate the willingness of Chairman Chafee and Subcommittee
Chairman Smith to accept this narrowly crafted amendment which will
avoid the need for New Jersey to export increasing volumes of waste and
will allow the State to meet its self-sufficiency goals by 2000.
While I cannot say that I share the enthusiasm that some have for the
structure created by this bill, I do accept it. I intend to support the
bill and vote for it. And I hope and trust it will quickly be adopted
in the Senate, conferenced, and sent to the President to be signed into
law.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
So the amendment (No. 775) was agreed to.
Mr. LAUTENBERG. I move to reconsider the vote.
Mr. SMITH. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. SMITH. Mr. President, it is a unique situation when the Senator
who has an amendment on the floor is presiding, because he is in the
unfortunate situation of not being able to respond at this particular
time. I apologize to the Senator for that, because I have another
commitment. I have to chair a subcommittee meeting at 1:30.
I do want to make some remarks, but at some point later, if the
Senator wishes to engage in any type of colloquy, I would be more than
happy to do that with him.
Mr. President, I want to clarify that the current business before the
Senate is the Kyl amendment; is that correct?
The PRESIDING OFFICER. The Hatch amendment to the Specter amendment
to the substitute.
Amendment No. 769
Mr. SMITH. I will make some remarks in response to the amendment
offered by the Senator from Arizona, Senator Kyl, in regard to
shortening the grandfather to the length of the bonds.
This is a difficult situation for this Senator, because in concept
and in philosophy I totally agree with what the Senator from Arizona is
trying to do.
I have made my statement here on the floor regarding this issue in
the opening debate on the bill that I oppose
[[Page S6484]] flow control. I think that the interstate commerce
clause should be safeguarded. I do not want Congress to interfere.
The reason why we have had a difficult time with this issue, I say to
my colleagues, is that there are special circumstances where people
have incurred a tremendous amount of expense. As the Senator from
Arizona, Senator Kyl, said in his very eloquent remarks regarding his
amendment, the free enterprise system should be allowed to work.
We might say, why did those people go ahead and make these financial
obligations, knowing full well that they did not have the protection of
the law? I think that is a very valuable argument and an argument that
we certainly considered as we crafted this bill.
The problem was, and we had a hearing on this matter, and as we heard
from so many witnesses, there truly are some real national hardships
out there that, in terms of the investors, in some cases through no
fault of their own, perhaps, although not deliberately misled, some of
the bondholders probably did not get the full explanation of the impact
of the Carbone decision and what it meant for all of their investments
in these bonds.
It was something that we really struggled with, those members on the
committee, Senator Chafee and myself and others on the committee, who
really oppose flow control and did not want to interfere with the free
market on this issue.
On the other side there are two sections of the bill. The interstate
waste transfer is part of this legislation as well. So we have flow
control and interstate waste. The two parts of this bill, together, is
a very carefully crafted compromise to move both things forward at the
same time.
I guess with some amusement we think of how when laws and sausages
are made, we would be sick if we knew it. Maybe this is an example of
that.
Again, I will with great reluctance oppose the amendment of the
Senator from Arizona because of the fact it interferes with the
compromise. I will be specific, again, on the basis of the compromise,
not on the basis of philosophy.
We heard testimony from the Public Securities Association that $20
billion in bonds were used for flow control facilities. So, nationwide
there is some $20 billion in bonds out there.
These people have a liability. There is some question, we would say,
well, we went in knowing full well--maybe they did, maybe they did not.
This Senator is not convinced that all investors knew this. I could be
wrong.
I think it is pretty obvious, based on the testimony, all investors
were not fully aware of the impact of this, and I think people invested
in these facilities believing that they were going to have the
protection of flow control. Right or wrong, they believed, in some
cases, that they did. I am sure on the other side there are many people
who knew full well that they did not and took the risk. Again, every
investor bondholder, I do not believe, was fully aware of the
ramification.
When Carbone invalidated flow control, this whole situation was left
in limbo. Nothing is happening, no one knows what to do. No one knows
whether there will be flow control or no flow control. So here it is
before the Congress.
Now, most members on the EPW Committee did not want to have the
Congress speak to overturning the interstate commerce clause of the
Constitution.
There are dozens of incinerators and landfills in immediate danger if
flow control is not reauthorized immediately. What we have here is not
only a delicately crafted compromise, but an urgency in the sense that
every bond based upon flow control authority at this point is
threatened.
So I think there is an emergency. Senator Chafee asked me to hold
hearings on this quickly and to try to move this out of committee and
to the floor, and it has been on the calendar for quite some time. We
were looking for an opening to get it here.
The purpose, again, looking at the negatives of this which the
Senator from Arizona pointed out, the purpose, though, is to try to
give relief to these people. It is not to permanently interfere with
the free market, which is why the 30-year grandfather was placed there.
The reason for the 30 year was we did not want to go back and review
every single bond, whether it was a 10-year bond, a 5-year bond, 20-
year bond, or 25-year bond. There were not any bonds beyond 30 years,
which is why we selected that date. Could we have selected 15 years and
been more in line with what the Senator from Arizona favors? Yes, we
could have. Could we have selected the life of the bond as the
Senator's amendment addresses?
Yes, we could have.
The problem is, though, we also added through language in the bill
the opportunity to upgrade facilities. And I think that is where we get
into a problem with the amendment of the Senator. If, after the
expiration of a bond, someone wants to upgrade these facilities--not
really expand but upgrade, keep them maintained--then they have no
protection under the Kyl amendment. The underlying bill provides a very
narrow flow control authority to protect these bonds. It may not be a
perfect compromise, it certainly is not. But I think it is a fair
compromise. It serves notice on everyone.
I hope 20 years from now, 25 years from now, Congress will not go
back and extend this. It is our intent it be ended. Everybody, all 50
States, all the entities in those 50 States, all the haulers and the
Governors and the systems, everyone who is involved with flow control
in any way should be on notice that, effective with the passage of this
bill, it is over in 30 years and they ought to plan accordingly. That
is the goal. The Kyl amendment disrupts that slightly and provides more
uncertainty, although it is well intended. Again, the Kyl amendment
does limit flow control. There is no question about it. It limits it
further than the underlying bill. Philosophically I agree with that
but, again, it is the compromise we are concerned about.
The amendment would provide grandfathered authority only until the
time the bonds are paid off. So if you have a 15-year bond and a
contract that extends beyond those 15 years, or the need to upgrade
your facility beyond the 15-year length of the bond, then you cannot do
it under the Kyl amendment. You cannot do it with the protection of the
flow control legislation.
This amendment also does not cover contracts. It will create havoc in
a number of cities and towns that made financial commitments based on
the mistaken impression--true, mistaken impression--that they had this
authority. I think the phrase ``mistaken impression'' really goes to
the heart of why I came down on the side I did on the amendment, on the
Kyl amendment, as well as the underlying bill. There are innocent
people here who have been impacted. I could not in good conscience
allow that to continue without the protection they thought they had
when they entered into this agreement.
Maybe it is an interesting conclusion here that it is a compromise,
and if to you wanted to put it in direct statements, those who love
flow control do not like the Smith-Chafee bill. Those who oppose flow-
control do not like the bill. I think that probably means the
compromise is about right. It is in the middle.
I know there are those who are going to, from a philosophical
perspective, support the Kyl amendment. My fear, and I think it is a
legitimate fear, is that at the time the Kyl amendment is agreed to and
becomes part of the underlying bill I think it could possibly,
conceivably, kill the bill or at least kill the compromise. I think if
that happens and the bill gets pulled back from the floor because of
the budget legislation which will be coming up next week, the budget
resolution that will be coming up next week, then I do not know when we
would get back to it as we get into the pressures of time with more
legislation. Again, those people who need immediate relief will not
have it.
I might just say in conclusion, we have tried to work with a number
of States that have had concerns: Florida, Maine, Minnesota--the
Senator from Minnesota, Senator Wellstone, and I agreed on an amendment
yesterday. Senator Lautenberg and I disagreed on another amendment in
New Jersey. States do have special considerations and special problems.
But, again, the intention here--and I want to make
[[Page S6485]] this point, because it is important--the intention here
was to strike this balance and not to move too far. Not to allow open-
ended flow control authority on the left, if you will, on the one side;
and at the same time not to allow it to go back so far over to the free
market side on this particular bill that we would lose the balance.
I might say for the benefit of the Senator from Arizona, we have
rejected a number of amendments that would allow for open-ended action.
If this community says, ``We would like to think about having flow
control at some point within the 30-year period, will you exempt us?''
The answer is, ``No, we will not.'' In other words, there had to be
some financial commitment, preferably a bond or contract, some amount
of money had to be committed, usually in the form of a contract or a
bond. So we were very, very tough on those people who came to us. We
did not agree to allow that far-reaching aspect of the bill.
Again, it might not be exactly what everybody wanted but it is a
compromise and I urge my colleagues, no matter whether you are moving
further to the free market side as I am, or whether you are moving
further toward flow control where Senator Lautenberg and others are,
whichever one of those positions you favor, I urge my colleagues to
stay here in the center, in the compromise, and reject the Kyl
amendment and reject any amendments on the other side that may come up
to expand flow control authority. So, on the one hand let us not expand
it. On the other hand, let us not restrict it.
I again encourage my colleagues, when the vote does come on this
amendment, to defeat it for the reasons given.
Mr. President, I yield the floor. If no other Senators are seeking
recognition, 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. DeWINE. Mr. President, Mr. President, I ask unanimous consent
that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DeWINE. Mr. President, I further ask unanimous consent to speak
as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
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