[Congressional Record Volume 141, Number 113 (Thursday, July 13, 1995)]
[Senate]
[Pages S9834-S9855]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  COMPREHENSIVE REGULATORY REFORM ACT

  The PRESIDING OFFICER. The Senate will now resume consideration of S. 
343. The clerk will report.
  The legislative clerk read as follows:

       A bill (S. 343) to reform the regulatory process, and for 
     other purposes.

  The Senate resumed consideration of the bill.

       Pending:
       Dole amendment No. 1487, in the nature of a substitute.
       Roth/Biden amendment No. 1507 (to amendment No. 1487), to 
     strengthen the agency prioritization and comparative risk 
     analysis section of the bill.

  Mr. JOHNSTON addressed the Chair.
  The PRESIDING OFFICER. Mr. Johnston is recognized.
  Mr. JOHNSTON. Mr. President, last night after I had left the Chamber 
and repaired to my home, a cloture motion was filed on this bill of 
which I was totally unaware. Mr. President, I believe that that was 
exactly the wrong thing to do on this bill. I believe we were making 
good bipartisan progress on this bill. It is a difficult, complicated 
bill. I think the legislative process was proceeding, if not with 
dispatch, at least with a spirit of dealing with the issues. And I 
think we have begun to make great progress.
  Just overnight last night, for example, in a good spirit of 
bipartisan progress, I understand we have worked out the Roth 
amendment, I believe to the satisfaction of both sides. That will 
remain to be seen. But I believe that is so. I think we had a session 
scheduled this morning for 9:30 dealing with some of those on our side 
of the aisle who, in a spirit of bipartisan cooperation, wanted to try 
to work out some of the remaining issues. And I think there was some 
hope that that could take place.
  With the filing of the cloture motion, that meeting was called off 
because our side, the Democratic side, had to repair to put in all of 
these amendments which had to be prepared by, I think, 1 p.m. today.
  Mr. President, I have just come from a meeting with the majority 
leader and have urged him in the strongest way possible to withdraw the 
cloture motion, to let us continue on in a bipartisan spirit to work 
our way through these amendments. I have not seen yet on this bill 
delaying tactics. All of the amendments which have been proposed 
obviously have not been amendments which I have agreed with. But I 
think they were legitimate amendments. And on, for example, the 
cryptosporidium amendment last night--I think that was a serious 
amendment--there was also a time limit agreed to. And, Mr. President, 
that is not the stuff of a filibuster, when you have a serious 
amendment with a time limit. So, I am in good hopes, Mr. President, 
that we can withdraw that cloture motion and let us legislate.
  Today, I hope to deal, for example, with the suggestion that Senator 
Glenn made yesterday about extending the 180-day period for completion 
of the cost-benefit analysis when you invoke the emergency provisions 
of the bill when there is an emergency with respect to health, safety, 
or the environment. I think we can agree to that. It was a good 
amendment. I hope we can agree to that.
  I am very strongly for removing environmental cleanup or Superfund 
from this bill. I hope to join with Senator Baucus in proposing that 
amendment this morning. I hope we can get that done with a short time 
agreement.
  So, Mr. President, I have urged the majority leader, as I say, in the 
very strongest way possible to withdraw the cloture motion. Let us 
return to legislating rather than having to prepare a finite list of 
amendments. I will say from my side of the aisle I believe that we can 
secure cooperation. I do not believe there is a filibuster.
  Mr. President, if there were a filibuster, we would not have had, 
believe me, a 30-minute time limit on cryptosporidium last night. That 
is a great issue to talk about for days. I mean, it has all those 
elements--public health, people dying. It is a serious issue. But it 
was a serious amendment. We took a vote on it. I happen to be for the 
motion to table, not because I do not have sympathy on the issue--I 
mean more than sympathy; I think it is a tremendous issue--but because 
I think we had it taken care of. And I might say that I and others 
spoke to Senator Kohl last night and said we believe we are confident 
that this issue has been resolved by the earlier Johnston amendment.
  However, we will look at that issue between now and the conference, 
and if it needs fixing, if there is any assurance that we need to give 
to people that cryptosporidium will not be a problem, that the 
regulation of it will 

[[Page S 9835]]
not be hindered or delayed, we are prepared to do that. I know I heard 
Senator Hatch say that very thing, and I have given that assurance to 
Senator Kohl. That is the kind of spirit which I think we need on this 
bill to successfully pass it.
  I hear from my caucus that we want a good, reasonable, workable 
regulatory reform bill. We certainly hear that from the other side of 
the aisle. We ought to build on that spirit. To be sure, there are 
differences on how we think we would arrive at that, but they are 
differences which can be reconciled.
  So, Mr. President, I am hopeful that this will be a productive day of 
legislating; that we will, in fact, withdraw the cloture motion; that 
we will resume serious legislating in a spirit of bipartisan 
cooperation.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah [Mr. Hatch] is 
recognized.
  Mr. HATCH. Mr. President, I got here about a quarter to 7 this 
morning. I happened to have left before the cloture motion was filed 
myself and was not sure whether the distinguished majority leader was 
going to do that, which he has every right to do, especially where it 
is believed there is a delay for delay's sake.
  I remember in the last number of Congresses when Senator Mitchell was 
the majority leader, they would call up a bill and file cloture that 
day on almost every controversial bill--it was just amazing to me--and 
accuse us of filibustering right from the word go. We are now on the 
fourth day of this--actually the sixth. We have had very few 
amendments, and the ones that we have had are amendments that seem to 
want to repeat what is already in the bill.
  Be that as it may, I showed up for our negotiating session this 
morning. I had to testify on the Utah wilderness bill at a 9:30 
meeting. I showed up and the room was empty. I was prepared, as my 
distinguished friend from Louisiana was, to sit down with our 
colleagues on the other side to find out what we can do to narrow the 
amendments and resolve any conflicts that exist and try to bring us 
together, if we can.
  I have to say, my friend from Louisiana and I have worked long and 
hard to try and bring us together, to try and accommodate those on the 
other side who differ with us on this bill.
  There are things we have been able to do and there are things we have 
not been able to do. On the list they provided us, we gave them answers 
on every one of the items, and most of the answers were that we cannot 
do this. But there were still some areas where we probably could get 
together and hopefully resolve some of the differences between the two 
sides. If we cannot resolve differences and the amendments are really 
serious and decent amendments, then we will just have it out on the 
floor. Whoever wins wins, and we just vote them up or down. I am 
hopeful our side will stand firm against some of these amendments.
  Nobody is trying to give anybody a rough time. The majority leader 
has a lot of pressure on him to get this matter resolved and to save as 
many days as he can so that we do not cut into the August recess. He 
has all kinds of things on the plate that need to be heard, so 
naturally he wants to move ahead. I want to move ahead. The 
distinguished Senator from Louisiana would like to move ahead. We would 
like to resolve the difficulties and certainly have people feeling good 
about it.
  I do not think there is any real reason for any person after 5 days 
on the bill to pitch a hissy fit with the fact that a cloture motion 
has been filed. That has happened around here all my Senate career. It 
is not unique. It says, ``Let's get busy, let's work and get this 
done.'' I hope the two leaders can work out some way of getting this 
done. I also hope that we can all work together on this floor.
  This is such an important piece of legislation that I hope we can all 
get together on this floor and help bring it about. This legislation 
will save lives. This legislation will provide the very best science 
applicable to some of the most important problems and issues of our 
society. This legislation will solve the problems, or at least go a 
long way toward solving the problems of the overregulatory nature of 
our society, and some of the ridiculous regulations that all of us put 
up with.
  I know some have not liked my top 10 list of silly regulations, but I 
am going to bring them up everyday anyway, because there are those who 
are very dedicated to the bureaucracy around here. That is where their 
power comes from. They can have the bureaucracy do what they could 
never pass on the floor of the U.S. Senate. It does not make any 
difference what it is going to cost, the bureaucracy just does it. This 
bill says, no, you are going to have to have a cost-benefit analysis 
and risk assessment to determine how dangerous it is before you go and 
saddle the American people with unnecessary costs and tremendous 
burdens, and you have to be more serious about regulations rather than 
have these silly, dumbbell regulations that are eating our country 
alive and costing us billions of unnecessary dollars, to the extent of 
$6,000 to $10,000 per family in this society.
  Let me just give my top 10 list of silly regulations. This is list 
No. 5.
  Let me give you silly regulation No. 10: This is where over two dozen 
agents, some in helicopters, stormed a farmer's field and seized his 
tractor for allegedly harming the endangered kangaroo rat. The farmer 
was never notified that his land was a habitat for the rat, and even 
the Federal officials were not certain which type of rats were on his 
land. And yet they came and stopped this farmer from doing his farming 
that he had done for years on the basis of an alleged harm to an 
endangered alleged kangaroo rat. That is silly, but that is what our 
people out there are going through.
  Let me give you silly regulation No. 9: Fining a company for worker 
safety violations such as: a cut in the insulation of an extension cord 
which had been taken out of service, three citations, and a splintered 
handle on a shovel, in spite of the fact that the shovel was placed in 
the back of a truck after it broke.
  Now, that is silly, but that is the type of regulation and 
interpretation of regulations we are going through in this society.
  Silly regulation No. 8: Requiring so many procedures that it took a 
business an entire month to hire just one person. Because of such 
complexity and the extreme penalties that go with violations, the owner 
has resolved never, never to hire more than 10 workers, despite the 
fact that each worker logs 500 hours of overtime in a year. He just is 
not going to put up with this type of regulation, and having 10 or 
fewer, he does not have to. Except he did have to spend an entire month 
to just hire one person.
  Silly regulation No. 7: Fining a roofing company for failure to have 
a fire extinguisher in the proper place, in spite of the fact that it 
had been moved to prevent it from being stolen by passersby as three 
other extinguishers had been in the preceding 3 days.
  Silly regulation No. 6: Requiring a trucking company to spend 
$126,000 to destroy nine fuel tanks which were not leaking.
  Silly regulation No. 5: Denying a wetland permit application and 
ordering an elderly couple to remove dirt in an alleged wetland--dirt 
which had been placed on the land by the city 10 years before the 
couple bought the lot--only to concede a year later that the couple did 
not need a permit to have the fill on their land. That is silly.
  Silly regulation No. 4: Seeking a $14 million fine against farmers 
who were accused of violating the Clean Water Act by building a levy to 
prevent their farm from flooding. That is ridiculous, but that is what 
they did, a $14 million fine against these poor farmers who just wanted 
to prevent their farm from flooding.
  Silly regulation No. 3: Prohibiting an 80-year-old farmer from 
farming his land, claiming it was a wetland when a local business 
accidentally cut a drainage pipe.
  I only have two more, and then I will yield to the majority leader.
  Silly regulation No. 2: Preventing a company from harvesting any 
timber on 72 acres of its land because two spotted owls were seen 
nesting over a mile and a half away. No spotted owls had actually been 
seen on the company's land.
  Let me just go to silly regulation No. 1: Requiring one of our towns 
in this country to build a new reservoir in 

[[Page S 9836]]
order to comply with the Safe Drinking Water Act and then prohibiting 
the construction of the reservoir because it would flood a wetland.
 Fines were threatened if the reservoir was built and if it was not 
built. So the town did not know what to do. It would be fined either 
way. That is ridiculous and silly. That is what the American people are 
putting up with.

  We can flood this floor with silly regulations, but we will bring a 
top 10 list every so often just to remind people of what this is all 
about: to get rid of this junk and to let us live in more peace and 
safety in this country.
  Mr. DOLE addressed the Chair.
  The PRESIDING OFFICER (Mrs. Hutchison). The majority leader is 
recognized.
  Mr. DOLE. Madam President, first, I want to indicate that I will be 
meeting with Senator Daschle in 2 or 3 minutes. We will be talking 
about the schedule for the balance of this month and into August.
  As I ever said many times--not in any threatening way because it is a 
matter of fact--there is no question about losing part of the August 
recess. That is why I have been attempting to move as quickly as 
possible on this bill so we can go on to what I consider to be the next 
important thing we need to do before we have the August recess.
  I will be going over that list with Senator Daschle in a few moments. 
I do not think it is unreasonable, but it will take the cooperation of 
all Members, and it will mean, frankly, every day we lose is a day we 
lose in the recess period, which I think is understandable by most 
Members.
  I listened to the comments of the Senator from Louisiana, and I must 
say I apologize for not notifying him and others earlier. I had 
mentioned it in a press conference, and we thought it was fairly public 
knowledge, that we would file a cloture motion. But more important than 
the cloture motion is to determine when we can finish this bill and how 
many amendments there are, and whether we can get time agreements.
  We have made some progress, but it has been painfully slow. We 
started on this bill last Thursday. We had a lot of debate and we did a 
little debate Thursday before the recess, and a little bit Friday, and 
we have had 3 days this week.
  This is a very important bill. I did not think we would finish it 
this week, but I would like to finish by next Tuesday. I will discuss 
that with Senator Daschle, and I will have some announcement to all of 
my colleagues shortly after that time.


                    Amendment No. 1507, as Modified

  Mr. ROTH. Madam President, I send a modified amendment to the desk.
  The PRESIDING OFFICER. The Senator has the right to modify his 
amendment.
  The amendment is so modified.
  The amendment (No. 1507), as modified, is as follows:

       Delete all of section 635 (page 61, line 1 through page 64, 
     line 14 and add in its place the following new section 635:

     SECTION 635. RISK-BASED PRIORITIES.

       (a) Purposes.--The purposes of this section are to--
       (1) encourage Federal agencies engaged in regulating risks 
     to human health, safety, and the environment to achieve the 
     greatest risk reduction at the least cost practical;
       (2) promote the coordination of policies and programs to 
     reduce risks to human health, safety, and the environment; 
     and
       (3) promote open communication among Federal agencies, the 
     public, the President, and Congress regarding environmental, 
     health, and safety risks, and the prevention and management 
     of those risks.
       (b) Definitions.--For the purposes of this section:
       (1) Comparative risk analysis.--The term ``comparative risk 
     analysis'' means a process to systematically estimate, 
     compare, and rank the size and severity of risks to provide a 
     common basis for evaluating strategies for reducing or 
     preventing those risks.
       (2) Covered agency.--The term ``covered agency'' means each 
     of the following:
       (A) The Environmental Protection Agency.
       (B) The Department of Labor.
       (C) The Department of Transportation.
       (D) The Food and Drug Administration.
       (E) The Department of Energy.
       (F) The Department of the Interior.
       (G) The Department of Agriculture.
       (H) The Consumer Product Safety Commission.
       (I) The National Oceanic and Atmospheric Administration.
       (J) The United States Army Corps of Engineers.
       (K) The Nuclear Regulatory Commission.
       (3) Effect.--The term ``effect'' means a deleterious change 
     in the condition of--
       (A) a human or other living thing (including death, cancer, 
     or other chronic illness, decreased reproductive capacity or 
     disfigurement); or
       (B) an inanimate thing important to human welfare 
     (including destruction, degeneration, the loss of intended 
     function, and increased costs for maintenance).
       (4) Irreversibility.--The term ``irreversibility'' means 
     the extent to which a return to conditions before the 
     occurrence of an effect are either very slow or will never 
     occur.
       (5) Likelihood.--The term ``likelihood'' means the 
     estimated probability that an effect will occur.
       (6) Magnitude.--The term ``magnitude'' means the number of 
     individuals or the quantity of ecological resources or other 
     resources that contribute to human welfare that are affected 
     by exposure to a stressor.
       (7) Seriousness.--The term ``seriousness'' means the 
     intensity of effect, the likelihood, the irreversibility, and 
     the magnitude.
       (c) Department and Agency Program Goals.--
       (1) Setting priorities.--In exercising authority under 
     applicable laws protecting human health, safety, or the 
     environment, the head of each covered agency should set 
     priorities and use the resources available under those laws 
     to address those risks to human health, safety, and the 
     environment that--
       (A) the covered agency determines to be the most serious; 
     and
       (B) can be addressed in a cost-effective manner, with the 
     goal of achieving the greatest overall net reduction in risks 
     with the public and private sector resources expended.
       (2) Determining the most serious risks.--In identifying the 
     greatest risks under paragraph (1) of this subsection, each 
     covered agency shall consider, at a minimum--
       (A) the likelihood, irreversibility, and severity of the 
     effect; and
       (B) the number and classes of individuals potentially 
     affected, and shall explicitly take into account the results 
     of the comparative risk analysis conducted under subsection 
     (d) of this section.
       (3) OMB review.--The covered agency's determinations of the 
     most serious risks for purposes of setting priorities shall 
     be reviewed and approved by the Director of the Office of 
     Management and Budget before submission of the covered 
     agency's annual budget requests to Congress.
       (4) Incorporating risk-based priorities into budget and 
     planning.--The head of each covered agency shall incorporate 
     the priorities identified under paragraph (1) into the agency 
     budget, strategic planning, regulatory agenda, enforcement, 
     and research activities. When submitting its budget request 
     to Congress and when announcing its regulatory agenda in the 
     Federal Register, each covered agency shall identify the 
     risks that the covered agency head has determined are the 
     most serious and can be addressed in a cost-effective manner 
     under paragraph (1), the basis for that determination, and 
     explicitly identify how the covered agency's requested budget 
     and regulatory agenda reflect those priorities.
       (5) Effective date.--This subsection shall take effect 12 
     months after the date of enactment of this Act.
       (d) Comparative Risk Analysis.--
       (1) Requirement.--(A)(i) No later than 6 months after the 
     effective date of this Act, the Director of the Office of 
     Management and Budget shall enter into appropriate 
     arrangements with a nationally recognized scientific 
     institution or scholarly organization--
       (I) to conduct a study of the methodologies for using 
     comparative risk to rank dissimilar human health, safety, and 
     environmental risks; and
       (II) to conduct a comparative risk analysis.
       (ii) The comparative risk analysis shall compare and rank, 
     to the extent feasible, human health, safety, and 
     environmental risks potentially regulated across the spectrum 
     of programs administered by all covered agencies.
       (B) The Director shall consult with the Office of Science 
     and Technology Policy regarding the scope of the study and 
     the conduct of the comparative risk analysis.
       (C) Nothing in this subsection should be construed to 
     prevent the Director from entering into a sole-source 
     arrangement with a national recognized scientific institution 
     or scholarly, organization.
       (2) Criteria.--The Director shall ensure that the 
     arrangement under paragraph (1) provides that--
       (A) the scope and specificity of the analysis are 
     sufficient to provide the President and agency heads guidance 
     in allocating resources across agencies and among programs in 
     agencies to achieve the greatest degree of risk prevention 
     and reduction for the public and private resources expended;
       (B) the analysis is conducted through an open process, 
     including opportunities for the public to submit views, data, 
     and analyses and to provide public comment on the results 
     before making them final;
       (C) the analysis is conducted by a balanced group of 
     individuals with relevant expertise, including toxicologists, 
     biologists, engineers and exports in medicine, industrial 
     hygiene and environmental effects, and the selection of 
     members for such study shall be at the discretion of the 
     scientific institution or scholarly organization;
       (D) the analysis is conducted, to the extent feasible and 
     relevant, consistent with the 

[[Page S 9837]]
     risk assessment and risk characterization principles in section 633 of 
     this title;
       (E) the methodologies and principal scientific 
     determinations made in the analysis are subjected to 
     independent peer review consistent with section 633(g), and 
     the conclusions of the peer review are made publicly 
     available as part of the final report required under 
     subsection (e); and
       (F) the results are presented in a manner that 
     distinguishes between the scientific conclusions and any 
     policy or value judgments embodied in the comparisons.
       (3) Completion and review.--No latter than 3 years after 
     the effective date of this Act, the comparative risk analysis 
     required under paragraph (1) shall be completed. The 
     comparative risk analysis shall be reviewed and revised at 
     least every 5 years thereafter for a minimum of 15 years 
     following the release of the first analysis. The Director 
     shall arrange for such review and revision with an accredited 
     scientific body in the same manner as provided under 
     paragraphs (1) and (2).
       (4) Study.--The study of methodologies provided under 
     paragraph (1) shall be conducted as part of the first 
     comparative risk analysis and shall be completed no later 
     than 180 days after the completion of that analysis. The goal 
     of the study shall be to develop and rigorously test methods 
     of comparative risk analysis. The study shall have sufficient 
     scope and breadth to test approaches for improving 
     comparative risk analysis and its use in setting priorities 
     for human health, safety, and environmental risk prevention 
     and reduction.
       (5) Technical guidance.--No later than 180 days after the 
     effective date of this Act, the Director, in collaboration 
     with other heads of covered agencies shall enter into a 
     contract with the National Research Council to provide 
     technical guidance to agencies on approaches to using 
     comparative risk analysis in setting human health, safety, 
     and environmental priorities to assist agencies in complying 
     with subsection (c) of this section.
       (e) Reports and Recommendations to Congress and the 
     President.--No later than 24 months after the effective date 
     of this Act, each covered agency shall submit a report to 
     Congress and the President--
       (1) detailing how the agency has complied with subsection 
     (c) and describing the reasons for any departure from the 
     requirement to establish priorities to achieve the greatest 
     overall net reduction in risk;
       (2) recommending--
       (A) modification, repeal, or enactment of laws to reform, 
     eliminate, or enhance programs or mandates relating to human 
     health, safety, or the environment; and
       (B) modification or elimination of statutorily or 
     judicially mandated deadlines,

     that would assist the covered agency to set priorities in 
     activities to address the risks to human health, safety, or 
     the environment in a manner consistent with the requirements 
     of subsection (c)(1);
       (3) evaluating the categories of policy and value judgments 
     used in risk assessment, risk characterization, or cost-
     benefit analysis; and
       (4) discussing risk assessment research and training needs, 
     and the agency's strategy and schedule for meeting those 
     needs.
       (f) Savings Provision and Judicial Review.--
       (1) In General.--Nothing in this section shall be construed 
     to modify any statutory standard or requirement designed to 
     protect human health, safety, or the environment.
       (2) Judicial review.--Compliance or noncompliance by an 
     agency with the provisions of this section shall not be 
     subject to judicial review.
       Agency analysis.--Any analysis prepared under this section 
     shall not be subject to judicial consideration separate or 
     apart from the requirement, rule, program, or law to which it 
     relates. When an action for judicial review of a covered 
     agency action is instituted, any analysis for, or relating 
     to, the action shall constitute part of the whole record of 
     agency action for the purpose of judicial review of the 
     action and shall, to the extent relevant, be considered by a 
     court in determining the legality of the covered agency 
     action.

  Mr. ROTH. Madam President, I rise to urge my colleagues to support my 
amendment to encourage agencies to set risk-based priorities. This 
amendment incorporates the basic language in S. 291 which I introduced 
in January and which received bipartisan and unanimous support of the 
Governmental Affairs Committee. Such language is also in S. 1001, 
introduced by Senator Glenn.
  This language has been modified slightly through negotiations with 
Senator Glenn and Senator Johnston.
  I ask unanimous consent to add the names to my amendment of Senator 
Johnston and Senator Glenn.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ROTH. Madam President, I ask unanimous consent that on the Roth 
amendment regarding risk-based priorities, there be 30 minutes for 
debate, to be equally divided in the usual form, and that no second-
degree amendments be in order.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. ROTH. Madam President, this amendment would significantly improve 
upon the current section 635 of S. 343, and it would clarify to the 
agencies what is expected of them regarding priority setting.
  My amendment provides an effective date by which the agencies would 
set priorities to ensure they achieve the greatest overall risk 
reduction.
  It also defines certain terms such as comparative risk analysis, and 
most serious risk, to reduce ambiguity about their requirements.
  My amendment also lists covered agencies to which this requirement 
applies.
  This amendment will also ensure that the risk study is based on some 
science. The comparative risk analysis would have to meet the standards 
for risk assessment, risk characterization, and peer review already 
provided in S. 343.
  The amendment also makes clear that the comparative risk analysis 
across Federal agencies is institutionalized in agency practice. It is 
not a one-time event.
  Instead of specifying a particular scientific body to conduct a 
comparative risk analysis, the amendment allows OMB to consult with 
OSTB in arranging the comparative risk study across Federal agencies.
  Madam President, I would like to emphasize that I think it is 
critically important that we allow full public participation through 
the risk priority-setting process, and that this amendment assures an 
open process, allows public comment, and requires that policy judgments 
in the risk study be separated from scientific determination.
  In sum, this amendment will allow Members to be confident that the 
agencies will use the results of the comparative risk analysis in a 
meaningful way. It will help ensure that we generate or obtain greater 
risk reduction at less cost.
  Madam President, I would like to take some time to speak about the 
need for this amendment and what it would require. I believe that 
setting risk-based priorities offers the best opportunity to allocate 
rationally the resources of both the government and the private sector 
to protect human health, safety, and the environment.
  With this tool of comparative risk analysis, we can make our health, 
safety, and environmental protection dollars go farther, providing 
greater overall protection, and saving even more lives than the current 
system.
  The purpose of my amendment is to, one, encourage Federal agencies 
engaged in regulating risk to human health, safety, and the 
environment, to achieve the greatest risk reduction at the least cost 
practical; two, promote the coordination of policies and programs to 
reduce risk to human health, safety, and the environment; three, 
promote open communications among the Federal agencies, the public, the 
President and Congress regarding environmental health and safety risks 
and the prevention and management of those risks.
  There is widespread support for setting risk-based priorities by many 
distinguished experts. As the blue ribbon Carnegie Commission panel 
noted in its report, ``Risk in the Environment,'' the economic burden 
of regulation is so great and the time and money available to address 
the many genuine environmental and health threats so limited, that hard 
resource allocation choices are important.
  In the same vein, in 1995, National Academy of Public Administration 
report to Congress entitled ``Setting Priorities, Getting Results,'' 
recommends that the Environmental Protection Agency use comparative 
risk analysis to identify priorities, and use the budget process to 
allocate resources to the agencies priorities.
  The NAPA report recommends that Congress ``could enact specific 
legislation that would require risk-ranking report every 2 to 3 years. 
Congress should use the information when it passes environmental 
statutes or reviews EPA's budget proposals.''
  A national comparative risk analysis also was one of the chief 
recommendations of the Harvard Group on Risk Management Reform in their 
March 1995 report ``Reform of Risk Regulation: Achieving More 
Protection at Less Cost.'' 

[[Page S 9838]]

  Justice Steven Breyer has emphasized the need for risk-based 
priorities in his outstanding book ``Breaking the Vicious Circle: 
Toward Effective Risk Regulation.''
  Finally, I should note that this idea has its roots in two seminal 
reports, ``Unfinished Business'' (1987) and ``Reducing Risks.''
  To provide greater protection at less cost, I believe the Federal 
Government must systematically evaluate the threats to health, safety 
and the environment that its programs address, and determine which 
risks are the most serious, most amenable to reduce in a cost-effective 
manner.
  This amendment requires each designated agency to engage in this 
evaluation among and within the programs it administers to better 
enable the President and Congress to prioritize resource agencies. The 
risk addressed by all of the designated agencies would be evaluated and 
compared.
  Now, the purpose of these analyses is not to dictate how the 
government uses its resources but to provide Congress and the President 
with the information to make better informed choices.
  These analyses will be useful for identifying unaddressed sources of 
risk, risks borne disproportionately by a segment of the population, as 
well as research needs.
  This information will foster a clear reasoning for regulating in one 
area over another, or allocating resources to one program over another.
  Finally, conducted in the public view, these analyses are likely to 
enhance public debate about these choices and ultimately create greater 
public confidence in government policy. Hard data will form the 
underpinnings of the analysis.
  Public values must be incorporated when assessing the relative 
seriousness of the risk and when setting priorities. After all, 
scientific data alone cannot say which of the following is at greater 
risk or which should be addressed first. Neurological damage, heart 
disease, birth defects, a plane crash, or cancer.
  The comparative risk analysis should be conducted in such a way that 
public values are asserted and considered. This will require including 
public input and the comparative risk analysis. When the analysis is 
completed, it should be clear to the public and the policy makers which 
part of the risk comparison reflects science and which part reflects 
value.
  To encourage the use of risk-based priorities, my amendment requires 
not only that each agency set risk-based priorities for its programs, 
but also for the OMB to commission a report with an accredited 
scientific body, to study the methodologies of comparative risk 
analysis and to conduct such an analysis to compare risk across 
agencies.
  The priorities identified must be incorporated into the agency 
budget, strategic planning, regulatory agenda, enforcement, and, as 
appropriate, research activities. When submitting its budget request to 
Congress each agency must describe the risk prioritization results and 
explicitly identify how the requested budget and regulatory agenda 
reflect those priorities.
  Subsection (d) requires the Director of the Office of Management and 
Budget to have an accredited scientific body conduct a comparative risk 
analysis of risks regulated across all agencies.
  Because comparative risk analysis is still a relatively new science, 
particularly when used to compare dissimilar risks, subsection (d)(4) 
requires that, even while the comparative risk analysis is being 
conducted, a study be done to improve the methods and use of 
comparative risk analysis. The study should be sufficient to provide 
the President and agency heads guidance in allocating resources across 
agencies and among programs to achieve the greatest degree of risk 
prevention and reduction.
  Subsection (e) requires each covered agency to submit a report to 
Congress and the President no later than 24 months after the date of 
enactment of the act, and every 24 months thereafter. The reports 
should describe how the agencies have complied with subsection (c) and 
present the reasons for any departure from the requirement to establish 
priorities. The reports should identify the obstacles to prioritizing 
their activities and resources in accordance with the priorities 
identified. At this time, each agency should also recommend those 
legislative changes to programs or statutory deadlines needed to assist 
the agency in implementing those priorities.
  This report back to Congress is a very critical element in 
readjusting the Federal Government's priorities so that we can truly 
achieve the greatest degree of protection for health, safety and the 
environment with our resources. Congress needs this information to make 
the necessary changes.
  Madam President, we all know that this is a time of limited budgets 
and economic uncertainty. I believe that most of us recognize the need 
to reduce the regulatory burden that costs the average American family 
about $6,000 per year. But at the same time, the public highly values a 
clean environment, safe workplaces, and safe products. And I must add, 
that I deeply share these values. I am an environmentalist--proud to be 
an environmentalist. I want to reduce unduly costly regulations, but 
still ensure that important benefits and protections are provided. So 
the goal I seek is smarter regulation.
  This amendment will promote smarter regulation. It will provide much-
needed reform, not rollback. I ask my colleagues on both sides of the 
aisle to support this language--as they have done in S. 291 and S. 
1001.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. GLENN. Madam President, I rise to support this amendment by my 
friend from Delaware, our committee chairman. I think he is doing a 
service by proposing this amendment.
  He recognizes we cannot do everything. We do not have money enough to 
do everything we would like to do. We are trying to reform regulations. 
We are trying to cut back on regulations, onerous regulations. At the 
same time, what he is addressing is, even where we are trying to make 
serious approaches to matters like health and safety and so on, where 
we know we should be doing something in setting new standards for the 
whole Nation and for every single person, we will not have money enough 
to do all the things people out there would want done. What he is 
saying is we have to prioritize these.
  How do you do that? How do you make sure you get the greatest good 
out of every dollar that we spend on health and safety matters? There 
were a couple of key words there. This is a young science. That is 
exactly what it is. This comparative risk analysis is a fairly young 
science and it is a new methodology that is being put forward in how to 
deal with this. Most scientists who are involved with this, I believe, 
feel it has tremendous promise and can really guide us into doing a 
better job of setting our priorities at the Federal level.
  It can also tell us some things we should not do, by setting these 
priorities. It is not just to say we are going to try to do everything 
so now we will set the priorities of one, two, three, four; how we do 
these things and include everything in just because somebody came up 
with the idea. Comparative risk analysis can also say it is going to 
cost you so darned much to do this, or something else, we just cannot 
do that. So we would be better off taking that money and do overall 
more good in the long haul by spending that amount of money on 
something else, or two or three other things that might improve health 
and safety or whatever.
  So I am glad to support this. I believe I was added as a cosponsor a 
few moments ago. I think the distinguished author of this amendment 
asked I be included. If not, I do wish to be included as a cosponsor on 
this. I am glad to support it. I do not know of any opposition. I do 
not know whether the Senator from Louisiana wants to speak on this or 
not, but after he has had time to make remarks, I would be prepared to 
accept the amendment on our part.
  The PRESIDING OFFICER. The Senator from Ohio is listed as a 
cosponsor.
  Mr. GLENN. I thank the Chair.
  Madam President, I yield whatever time the Senator from Louisiana 
needs.
  Mr. JOHNSTON. Madam President, I commend Senator Roth, not only for 
the amendment, but the spirit of compromise that has made this 
amendment possible. It shows what we can do. Senator Roth has 
contributed so much to this whole bill and the whole issue of risk 
analysis and a risk assessment and 

[[Page S 9839]]
regulatory reform. This is but one additional indication of that.
  The amendment, as offered, enables but does not require participation 
by the National Academy of Sciences in developing methodologies for 
comparative risk analysis. It applies to a finite list of agencies who 
would be encouraged to adopt risk-based priorities, and will ensure 
that risk studies are based on sound science.
  Madam President, it is a good amendment. I support it. I am glad to 
be a cosponsor of it. And, again, I congratulate Senator Roth for his 
leadership in this area.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. ROTH. Madam President, I thank my distinguished colleagues, the 
Senator from Ohio and the Senator from Louisiana, for working with me 
to amend this proposal so it was acceptable on both sides of the aisle.
  I will be frank. I think it is a critically important amendment. I 
think we must, if we are going to accomplish the good we all desire, 
prioritize across agencies and within agencies. This will help enable 
us make better use of the resources that are available to make the 
quality of life better for the American people.
  Madam President, I urge acceptance of the amendment.
  The PRESIDING OFFICER. Do the Senators yield back their time on this 
amendment?
  Mr. GLENN. Madam President, all time is yielded back on this side.
  Mr. ROTH. I yield back my time.
  The PRESIDING OFFICER. If there be no further debate, the question is 
on agreeing to the amendment.
  The amendment (No. 1507), as modified, was agreed to.
  Mr. ROTH. Madam President, I move to reconsider the vote.
  Mr. GLENN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. ROTH. Madam President, I make a point of order a quorum is not 
present.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. JOHNSTON. Madam 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. 1516 to Amendment No. 1487

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

       The Senator from Louisiana [Mr. Johnston] proposes an 
     amendment numbered 1516 to amendment No. 1487.

  Mr. JOHNSTON. 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 25, line 19, strike out ``180 days'' and insert in 
     lieu thereof ``one year''.

  Mr. JOHNSTON. Madam President, the Senator from Ohio [Mr. Glenn] 
pointed out day before yesterday a real fault with this bill, which was 
that the provision on page 25 of the so-called Dole-Johnston amendment 
relating to health, safety, or emergency exemptions from the cost-
benefit analysis, provides that a rule may go into effect immediately 
if an agency for good cause finds that conducting cost-benefit analysis 
is impractical due to an emergency or health or safety threat that is 
likely to result in significant harm to the public or natural 
resources. But under that rule, not later than 180 days after the 
promulgation of such rule, the agency must comply with the subchapter; 
that is, they must complete the cost-benefit analysis, and under 
another section of the bill can complete a risk assessment if that is 
required.
  Madam President, 180 days, as the Senator from Ohio pointed out, 
simply is not enough time to get this done. This amendment extends that 
period to 1 year. So that, if there is a threat to the public health, 
safety or the environment, or if there is any kind of emergency, the 
agency can promulgate the rule, get it out, put it into effect 
immediately upon the declaration that they do not have time to do 
otherwise. This would give them then the year to do the cost-benefit or 
the risk analysis.
  Keep in mind also that under other provisions of this bill cost-
benefit analysis and risk assessment may be done in such form as is 
appropriate to the circumstances; that is, it can be done informally 
sometimes. Under some circumstances, for example, scientific reports 
which had been peer reviewed could be used and put into the record in 
lieu of conducting a brand-new peer review risk assessment. So we 
believe this would be enough time appropriately to finish such a 
review.
  I want to thank the Senator from Ohio for pointing this out. It will 
make this a much better bill.
  Mr. GLENN. Madam President, I think this certainly is a move in the 
right direction. We discussed this informally a couple of days ago. I 
hope the year is adequate. I guess if we are discussing this again I 
might suggest a little longer time or at least put a waiver in for the 
President or something, and, if at the end of the year they really just 
cannot do it in that period of time, that the President be granted a 
waiver authority in that event. That would cover all bases it seems to 
me for the health and safety for all of our people.
  But certainly the doubling of time from 180 days to 365, to a full 
year, is a step in the right direction. I think by far the greatest 
percentage of cases this would certainly cover. They could do the 
analysis and the assessments and all the things that are required 
within that period of time.
  So I would be prepared to accept this. I have a little bit of doubt 
in my own mind as to whether 1 year covers all of the situations we 
might run into without having a Presidential waiver at the end of that 
in case they were really up against it in some analysis.
  I do not know whether the author of this, the Senator from Louisiana, 
would consider granting the President a waiver on the end of that. But 
in any event, I am prepared to accept the 1 year.
  Mr. JOHNSTON. Madam President, I think the Senator's suggestion is a 
good one which I think we ought to move forward with in the conference 
committee. I will point out that there is nothing here that let us say 
they could not get done in a year. There is nothing in this language 
that says it is only a one-shot deal. They can put forth another major 
rule at the end of that year and start the 1-year process all over 
again. So the emergency is really protected by the fact that it says 
that you can. But in any event, I would be more comfortable with some 
kind of Presidential waiver. I think we could work on that between now 
and conference.
  Mr. GLENN. Good. I think with that understanding, I am prepared on 
our side of the aisle to accept this amendment. I think it is good with 
the length of time. It will protect the health and safety and protect 
everybody.
  Mr. ROTH. Could I ask the distinguished Senator, what is the 
understanding?
  Mr. GLENN. Just that we work further. The Senator from Louisiana is 
extending the time period from 180 days to 1 year, where that might be 
necessary to go back. And I mentioned the other day that the 6 months 
is hardly enough time to do another complete analysis the way these 
risk assessments and analyses go, and suggested that we lengthen that 
out to a year. This would be on a re-analysis. The Senator from 
Louisiana agreed with that.
  I would just question whether there might be some cases--I think they 
would be rare--where we require really more than a year because some of 
these things in the original or in the first instance takes several 
years, 4 or 5 years sometimes, to work out all the rules and 
regulations. But I think in most cases it would be covered by the 1 
year.
  I am happy to go along with that. What we were discussing was putting 
something in this also, if at the end of a year there was still a 
health and safety matter that was still being worked out, to give the 
President a waiver authority to go beyond that 1-year period. The 
Senator from Louisiana was pointing out also that the President could 
introduce a whole new process. I would not think that would be 
necessary.
  Mr. ROTH. I would say that I can support the amendment proposed by 

[[Page S 9840]]
  my distinguished colleague from Louisiana. I would certainly be happy 
to look at the suggestion from the Senator from Ohio. I think it is 
important that our process be realistic, that we do not expect the 
impossible from the agencies.
  The PRESIDING OFFICER. If there is no further debate, the question is 
on agreeing to the amendment of Senator from Louisiana.
  The amendment (No. 1516) was agreed to.
  Mr. JOHNSTON. Madam President, I move to reconsider the vote by which 
the amendment was agreed to.
  Mr. GLENN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. JOHNSTON. Madam President, while the majority leader is on the 
floor, I would like to send an amendment to the desk and see if we can 
deal with this at this time.


                Amendment No. 1517 to Amendment No. 1487

      (Purpose: To delete the section on ``Requirements for Major 
 Environmental Management Activities'' relating to cleanups under the 
  Solid Waste Disposal Act, the Comprehensive Environmental Response, 
 Compensation and Liability Act of 1980, and other similar activities)

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

       The Senator from Louisiana [Mr. Johnston], for Mr. Baucus, 
     for himself, Mr. Johnston, and Mr. Lautenberg, proposes an 
     amendment numbered 1517 to amendment No. 1487.

  Mr. JOHNSTON. 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:

       Strike out all of section 628 (on page 42 beginning at line 
     3 strike out all through line 13 on page 44) and renumber 
     section 629 as section 628.
       On page 73 in the table of contents for SUBCHAPTER II--
     ANALYSIS OF AGENCY RULES, replace ``628. Requirements for 
     major environmental management activities'' with ``628. 
     Petition for alternative method of compliance.''
       On page 57, lines 6 and 7 strike out the phrase ``or a 
     major environmental management activity''.

  Mr. JOHNSTON. Madam President, this is the amendment which removes 
from the bill the environmental cleanup, or so-called Superfund 
activities.
  I ask for the majority leader's attention on this matter because we 
talked about that this morning. I understand that the majority leader 
may be willing to withdraw the Superfund provisions from the bill. I 
also understand that Senators may prefer it be withdrawn by unanimous 
consent rather than have a vote on it. If that is possible, we would be 
delighted to have that done at this time. That would avoid the debate 
and the vote.
                      unanimous-consent agreement

  Mr. DOLE. Madam President, if I could come back to that in just a 
moment, I think we are about to get a consent agreement here. The 
Democratic leader is on the floor.
  First, let me indicate that after discussion with the Senator from 
Louisiana this morning, I did, as I indicated, have a meeting with the 
distinguished Democratic leader, Senator Daschle, with reference to the 
cloture motion and the cloture vote.
  Obviously, we both have the same interest. We want to finish the 
bill. We do not want to shut off debate, but we do not want delay on 
either side--either side. And I regret not having a chance to indicate 
to the leader personally that the cloture motion would be filed last 
night, or to the managers. I was at home watching on C-SPAN the 
reaction of Senator Glenn and others.
  So what we have agreed to, and I will now propound that request--and 
then the Senator from South Dakota may have a comment--I ask unanimous 
consent that the cloture vote scheduled to occur on Friday be postponed 
to occur on Monday at a time to be determined by the two leaders but 
not before 5 p.m.
  Mr. DASCHLE addressed the Chair.
  The PRESIDING OFFICER. Is there objection?
  Mr. DASCHLE. Madam President, reserving the right to object, and I 
will not object, I would first clarify with the majority leader that 
first-degree amendments would still be in order at least as to their 
filing up until the close of business on Friday. Is that the 
understanding of the majority leader?
  Mr. DOLE. That is correct.
  Mr. DASCHLE. I think that would accommodate a lot of the needs of 
many Senators on our side. As we indicated last night, many of us felt 
that the filing of the cloture motion was unfortunate, premature, but I 
think this will allow us to keep working in a meaningful way.
  I think it is clear that both sides, Democrats and Republicans, want 
to accomplish a good deal with regard to regulatory reform, and I think 
there is a lot of progress that has been made. We have raised a number 
of issues. While they have not been addressed and resolved to our 
satisfaction in some cases, these amendments have been proposed in good 
faith and have raised very important issues.
  I am hopeful we can continue to do that today. I am hopeful that at 
some point between now and Monday we will have the opportunity to 
debate the Democratic substitute, and we will simply take a look on 
Monday as to where we are and how much progress we have made as to what 
our position on cloture will be. But this certainly accommodates the 
need to allow Senators to come to the floor, to propose their 
amendments, and to have good debate. I think in many cases that can be 
done with short timeframes and perhaps some without rollcall votes. I 
would hope we could continue negotiations as well. I think we have made 
progress in many areas off the floor, and I hope that effort could 
continue as well. So I think the majority leader has advanced the 
effort here substantially, and I would encourage support of the motion.
  Mr. JOHNSTON. Madam President, will the minority leader yield for a 
question?
  The PRESIDING OFFICER. Does the minority leader yield?
  Mr. DASCHLE. I will be happy to yield. The floor is the majority 
leader's.
  Mr. DOLE. That is all right; I will be happy to yield for a question.
  Mr. JOHNSTON. I had urged the majority leader today not to go forward 
with the motion. I am glad he has delayed it. Does this delay meet with 
the full approval of the minority leader?
  Mr. DASCHLE. I say to the distinguished Senator from Louisiana, who 
has probably had as much to do with this bill as anybody, this is a 
very important step procedurally. I think, as I said, this allows us to 
go forth with additional amendments, perhaps with the substitute, so I 
think it accommodates the needs of Senators on both sides, and I am 
enthusiastic about the change that is proposed here today.
  Mr. JOHNSTON. I thank the minority leader, and I thank the majority 
leader for his willingness to accommodate this legislative process.
  The PRESIDING OFFICER. Is there objection to the request? If not, the 
Chair hears none, and it is so ordered.
  Mr. DOLE. Madam President, let me further ask, following along what 
the Senator from South Dakota suggested, that first-degree amendments 
may be filed up to the close of business on Friday, July 14, or if the 
Senate recesses prior to that time, early, they may be filed up until 4 
p.m. on Friday, even if we were out of here by 1 o'clock.
  So let me also indicate that I appreciate the cooperation, and I 
believe that there is a determined effort on both sides to pass a good 
regulatory reform bill. That is my conclusion after visiting with the 
Democratic leader and after visiting with the Senator from Louisiana 
[Mr. Johnston].
  As I have indicated before, what the leader is trying to do, and the 
leader has that responsibility, is move the program, and I would like 
to insert in the Record at this point a tentative agenda between now 
and the time we leave here in August. Hopefully it will be August when 
we leave here for recess. And I will ask to have that printed in the 
Record.
  I will just say, to highlight it, it has us completing this bill on 
Tuesday, and then we have Bosnia. And then we have appropriations next 
Thursday and Friday, and then the Ryan White provision on July 24, the 
gift and lobbying bill on that date if possible. Then we get into the 
State Department and foreign ops authorization bill, which will take us 
up to July 29, and then the 

[[Page S 9841]]
DOD authorization and DOD appropriations bills would take us up until 
August 5, and then begin welfare reform on August 7. And whenever we 
concluded our business on welfare reform, the recess would begin.
  Now, all these things are, of course, subject to change because if we 
do not keep up on the schedule, it obviously pushes us further into 
August. If everything worked as we would like it to work, it is 
possible we could begin the recess even before August 12.
  I ask unanimous consent that this be printed in the Record so that 
everybody will have a chance to look at it carefully and then start 
complaining to the leader about it.
  There being no objection, the schedule was ordered to be printed in 
the Record, as follows:

               Proposed Legislative Schedule July-August


                            week of july 10

       Regulatory reform.


                            week of july 17

       Regulatory reform through Tuesday.
       Tuesday p.m.--Bosnia.
       Wesnesday--Bosnia.
       Thursday--Available Appropriations bills.
       Friday--Available appropriations: Military Construction/
     Legislative/Energy and Water.


                            week of july 24

       Monday--Ryan White bill/Gift lobbying bill.
       Tuesday through Friday--Start State Department 
     reorganization bill and Foreign Operations Authorization.
       Saturday session if necessary.


                       week of July 31--August 4

       DOD authorization and DOD appropriations.
       Saturday session if necessary.


                          week of august 7 \1\

       Monday, begin welfare reform (or earlier if schedule 
     permits).
     \1\ All items must be completed prior to the start of the 
     August recess. As soon as these items are completed, 
     regardless of the day, the Senate will begin the recess.
---------------------------------------------------------------------------
       Tuesday through Friday--Continue welfare reform and 
     available appropriations bills or conference reports.
       Saturday session possible to complete any items.

  The PRESIDING OFFICER. In addition, the Chair would add the previous 
order will be so modified to reflect the 4 o'clock modification.
  Mr. DOLE. With reference to the pending amendment, I will need to do 
some checking on that before I am in a position to respond to the 
Senator from Louisiana. In other words, the amendment pending would in 
effect take Superfund out of the----
  Mr. JOHNSTON. That is right, environmental management activities, the 
whole section, just withdraw that.
  Mr. DOLE. I assume there will be Superfund legislation this year, and 
so at that time we would address the issues that are removed from this 
bill.
  Mr. JOHNSTON. I have heard from many of those Senators involved in 
the issue, all of whom are anxious to move forward with Superfund in 
their committee, and I think there is no hesitation in moving forward. 
I was told this morning that Senator Smith, who chairs the subcommittee 
on Superfund, is anxious to move forward but did not want to vote on 
this; he would rather have it done by the majority leader by unanimous 
consent. That is the reason I asked for the majority leader's 
attention.
  Mr. DOLE. Right. If I can just have a few minutes to clear that, I 
did not--we did discuss that this morning at our 8:30 meeting. We did 
discuss it briefly with the Senator from Louisiana. It is a very 
important provision. There are some of our colleagues who want to leave 
it as it is, others who have mixed feelings on it--in fact, some who 
would probably vote to remove it. The question is how many would vote 
to remove it. That is sort of the bottom line. If I could have a few 
moments to check with two or three people.
  Mr. JOHNSTON. Madam President, I think it may be appropriate to 
temporarily lay this aside unless someone has any problem with it, and 
I think Senator Boxer is ready to move with her amendment under a time 
agreement. So is there any problem with temporarily laying this aside?
  Madam President, I ask unanimous consent that we temporarily lay the 
pending amendment aside.
  The PRESIDING OFFICER. Is there objection?
  Mr. ROTH. Reserving the right to object----
  Mr. DOLE. I would like to dispose of the pending amendment if the 
Senator will just give me a few moments.
  Mr. JOHNSTON. I withdraw that request.
  Mr. DOLE. And either have a quorum or if somebody wanted to speak on 
some other--does the Senator from California wish to speak on another 
matter?
  Mr. GLENN. She has an amendment, but she could start speaking on it.
  Mrs. BOXER. I am waiting to introduce an amendment on mammograms.
  Mr. DOLE. The Senator could start speaking on that.
  Mr. GLENN. The Senator could start with the agreement that when he 
gets an answer back, she would be willing to yield the floor for that 
disposition.
  Mrs. BOXER. If the Senator will make that into a unanimous-consent 
request.
  Mr. DOLE. Let me suggest that as soon as we dispose of the amendment 
offered by the Senator from Louisiana, the Senator from California be 
recognized to offer an amendment.
  The PRESIDING OFFICER. Is there objection? The Chair hears none, and 
it is so ordered.
  Mr. DOLE. The Senator can start speaking now.
  Mrs. BOXER addressed the Chair.
  The PRESIDING OFFICER. The Senator from California is recognized to 
begin speaking with the reservation that if the pending amendment is 
agreed to, we will then interrupt and do that, and then we will return 
to the Senator from California.


                           Amendment No. 1524

  Mrs. BOXER. Madam President, thank you very much for that very 
explicit explanation of where we are in the process.
  I want to thank my colleagues because I do think this is a very 
important amendment. It affects the women of this country and, of 
course, as a result of that, everyone in this country, because one of 
the tragedies that we face in America today is an epidemic of breast 
cancer. And the amendment that I will introduce at the appropriate time 
will merely say that a rule that is in process now which will set 
standards for mammograms will be able to move forward and not be 
subjected to this new bill.
  Madam President, one in nine women are at risk of being diagnosed 
with breast cancer in her lifetime. Breast cancer is the most common 
form of cancer in American women and the leading killer of women 
between the ages 35 and 52.
  In 1995, an estimated 182,000 new cases of breast cancer will be 
diagnosed, and 46,000 women will die of the disease. Just in the year 
1995. We lost 50,000 brave men and women in the Vietnam war, and the 
country has suffered ever since in grief. Every year we lose 45,000 
women, approximately, from breast cancer.
  We do not know what causes breast cancer, although we are making 
progress on that front. We do not know how to prevent breast cancer, 
but the research that is moving forward hopefully will lead us in the 
right direction. We certainly do not have a cure for breast cancer, 
although, again, we are making progress. We do have, however, a couple 
of tools. Those are breast self-examination, doctor examination, and 
mammography. Those are the only tools that women have to detect breast 
cancer early, when it can be treated with the least disfigurement and 
when chances of survival are the highest.
  What does that have to do with the amendment that I will be 
introducing? And I am very proud to say, Madam President, that this 
amendment is cosponsored by Senators Murray, Mikulski, Lautenberg, 
Bradley, Feinstein, Dorgan, Kennedy and Reid. What does the tragic 
history of breast cancer have to do with the amendment that I am going 
to offer? It is directly related. The quality of a mammogram can mean 
the difference between life or death. If the mammogram procedure is 
done incorrectly, if a bad picture is taken, then a radiologist reading 
the x ray may miss seeing a potentially cancerous lump.
  Conversely, a bad picture can show lumps where none exist and a woman 
will have to undergo the trauma of being told she may have a cancer, a 
situation known as a ``false positive.'' Now, truly, I do not know many 
women of my age, younger or older, who have not had the trauma of a 
false reading. It is very common. 

[[Page S 9842]]

  We need to perfect mammograms. But a false positive is obviously 
nothing compared to a radiologist missing a cancer. To get a good-
quality mammogram, you need the right film and the proper equipment. To 
protect women undergoing the procedure, you need the correct radiation 
dose. So it is not a mystery. It is not a mystery as far as what we 
need to do to get better quality mammograms.
  I am very proud to say that in 1992, Congress passed the Mammography 
Quality Standards Act in order to establish national quality standards 
for mammography facilities. Now, I want to make a point about that. In 
this Republican Congress we hear a lot of talk about how everything 
should be given to the States. Why do we need national standards for 
this? Why should we have national standards for that?
  Well, let me tell you honestly, I have never been at a community 
meeting in my life--and I have been in public life for a very long 
time--where someone has come up to me and said, ``Senator, you are 
doing too much to protect the food supply. You are doing too much to 
protect the water. You are doing too much to make sure that mammography 
is safe.'' On the contrary, it is, ``Senator, I am worried about the 
safety of the water I drink. I am worried about the safety of the food 
that we eat. I am concerned about pesticide use, bacteria. What are you 
going to do to make it better?''
  And clearly, when a woman is misdiagnosed and a doctor misses the 
cancer because of a mammogram that was either improperly done or 
improperly read--we hear it all the time. And we all know cases where a 
cancer that could have been detected early was not detected because the 
quality of the mammogram or the quality of the reading simply was not 
high enough.
  So we passed the Mammography Quality Standards Act in order to 
establish national quality standards for mammography facilities. At the 
time, both the GAO and the American College of Radiology testified 
before Congress that the former patchwork of Federal, State and private 
standards were inadequate--inadequate--to protect women. So we are not 
talking about something here that was not studied. The GAO and the 
American College of Radiology testified before Congress that the 
patchwork that existed before this act, the Mammography Quality 
Standards Act, was inadequate. It was inadequate to protect women.
  There were a number of problems at mammography facilities: poor-
quality equipment, poorly trained technicians and physicians, a lack of 
regular inspections, and facilities which told women they were 
accredited when, in fact, they were not accredited. And women walked in 
for their mammograms. And every woman who had this experience can say 
that you hold your breath until you get the results. And many women 
breathed a sigh of relief and said they were cancer free, when in fact 
they were not cancer free because of the inadequate facilities.
  If this regulatory reform bill passes, the final rule that implements 
the mammography act that we passed could be delayed for years. Let me 
repeat that. And I hope my friend from Louisiana hears it and I hope 
the majority leader hears it. And this is not coming from one Senator; 
it is coming from the people who know. The FDA says to us clearly that 
if this regulatory reform passes as it is, the final rule implementing 
the Mammography Quality Standards Act, which is due out in October, 
could be delayed for years.
  My friends, we cannot let this happen. Under the interim rules, the 
FDA has already certified over 9,000 facilities as providing quality 
mammography services. If final rules are delayed, then women will no 
longer be able to rely on the good standards we have put in place.
  And that is why the amendment that I am introducing with many of my 
colleagues and my primary coauthors, Senator Murray from Washington--
and I look forward to her statement following mine--the amendment 
simply says that the Mammography Quality Standards Act is not a major 
rule and is therefore exempt from the requirements in the regulatory 
reform bill, period.
  Anyone who gets up here and says, ``You don't need the Boxer-Murray-
Mikulski legislation, we cover it,'' I will look that person in the eye 
and tell them they are playing Russian roulette with the women of this 
country, because the FDA has told us we need this Boxer-Murray 
amendment in order to make sure that this rule moves forward.
  So any Senator who stands up and starts questioning this Senator 
about it is going to have to hear it repeated over and over and over 
again, as many times as it takes. We jeopardize the health of the women 
of America if we do not adopt this amendment.
  Some are going to say the Mammography Quality Standards Act does not 
meet the $100 million threshold established by the bill for major rules 
and, therefore, it would not be affected and we do not need the Boxer-
Murray amendment. FDA believes otherwise, and I would rather believe 
them than some Senator who does not know this issue.
  We know already the cost of this rule is about $98 million, 
dangerously close to the $100 million threshold. With inflation and 
somebody jacking around the numbers, it could easily go to $100 
million. Some may argue that there are health and safety exemptions in 
the cost-benefit analysis and risk assessment portions of the bill to 
protect the Mammography Quality Standards Act. In fact, those 
exemptions apply only when it is ``likely to result in significant harm 
to the public.''
  The FDA does not believe this exemption would include the mammography 
quality standards. Moreover, since the bill does not define the term 
``significant harm,'' how can we tell if it would apply or not? If a 
woman has her mammogram read by someone who is poorly trained in 
mammography, is it of significant harm to the public if she dies? It is 
certainly significant to that woman if that person fails to detect a 
cancerous lump, and to her children and to her family. And if it 
happened to a Senator's wife, it sure would be significant and they 
would be rushing to the floor to exempt this rule.
  I say it is significant. This is such a significant subject--breast 
cancer--that we should make sure we are doing the right thing and 
exempt this rule.
  Let us concentrate on what we do know. Mammography is the only test 
we have to detect breast cancer early when survival rates are the 
highest. We know not enough women, especially older women, have this 
test. That is why there has been extensive public information campaigns 
encouraging women to get the test, and, therefore, when they do get the 
test, we need to know that the mammogram they are getting is accurate 
and that the person who is reading the mammogram understands how to 
read the mammogram, and that is why we need this rule, to move forward, 
and that is why we need the Boxer-Murray-Mikulski amendment.
  It is straightforward. It says that quality mammography is so 
important that we should not do anything to prevent the FDA from moving 
forward and continue to implement the Mammography Quality Standards 
Act. I certainly hope we will have broad support for this amendment 
when I do offer it.
  Mr. President, I ask unanimous consent that Senator Bumpers be added 
as a cosponsor of the amendment.
  The PRESIDING OFFICER (Mr. Kyl). Without objection, it is so ordered.
  Mrs. BOXER. As I understand the agreement, I was entitled to speak 
until there was an interruption. I ask unanimous consent that Senator 
Murray be allowed to make her comments now, with the understanding that 
if there is, in fact, an interruption regarding the Superfund 
amendment, we will lay this matter aside and come back to it 
immediately following it.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from Washington is recognized.
  Mrs. MURRAY. Thank you, Mr. President. I thank my colleague from 
California, Senator Boxer, for this amendment and for her very well-
stated words on this issue. I hope that all of our colleagues took the 
time to listen to what she had to say. She stated it very clearly for 
all of us why we need this amendment to exempt the Mammography Quality 
Standards Act regulations from the requirements of S. 343.
  I think we all know that breast cancer has taken the lives of far too 
many women, and the long list of those who have died include many of my 
own friends. I am sure everyone on this 

[[Page S 9843]]

floor knows of someone who has been touched by breast cancer. It is a 
growing health concern and problem in this Nation, and it is a great 
threat to women's health. It is estimated that during the 1990's, 
nearly 2 million women will be diagnosed with breast cancer and 460,000 
women will die from this deadly disease. I assure everyone listening 
that will include people you know--your sisters, your mothers, your 
daughters, your friends.
  In 1992, Congress understood that and they passed the Mammography 
Quality Standards Act. The FDA is responsible for issuing regulations 
under that act to ensure that medical procedures for mammography exams 
are safe and effective and that mammograms are properly administered 
and interpreted.
  Most of the regulations implementing the Mammography Quality 
Standards Act are due to be released October of this year. The 
regulations the FDA hopes to implement will set standards, as the 
Senator from California has said, for x ray film quality, requirements 
for staff, for reading and interpreting those x rays, and standards for 
recordkeeping. Those regulations will ensure that mammograms are done 
correctly and safely so that we can increase the chances of early 
detection.
  Under the Dole bill, implementation of these quality controls in 
mammography will qualify as a major rule, either because they may cost 
$100 million to implement or because they may cause a significant 
impact on a substantial number of small entities. They will then be 
subject to the cumbersome, expensive and lengthy cost-benefit analyses 
and risk-assessment process.
  At a time in this Nation when women are already confused by the mixed 
messages we receive about breast cancer and other diseases affecting 
us, I believe this bill sends yet another disturbing message: That 
Congress will demand that the FDA choose the lowest-cost alternative by 
placing a dollar value on a woman's life.
  We cannot let that happen. The potential positive effects of these 
regulations on the lives of women in this country are substantial. 
Improving the quality of mammography translates directly into early 
detection of breast cancer. Early detection of breast cancer increases 
the likelihood of successful treatment and survival. Delay in issuance 
of these regulations will cost women's lives.
  Mr. President, my colleague from Illinois, Senator Simon, summed up a 
simple and important message that is being lost in this debate on 
regulatory reform. He said what we need in this field is some balance, 
and I could not agree more. The American people want their elected 
officials to reduce wasteful and unnecessary spending and make their 
Government work efficiently. They want a balanced approach to 
decisionmaking about regulations. They do not want costs to be either 
the only or primary reason for a regulation. They want us to manage 
their tax dollars prudently, while also protecting their health and 
their environment.
  The amendment before us on mammography takes a step toward protecting 
their health. I hope that I can support eventually a comprehensive bill 
that provides true Government efficiency and rational decisionmaking. 
Unfortunately, S. 343 as now drafted does not do this.
  I urge my colleagues to look carefully at the amendment before us and 
to support it. I can assure all of you that women across this Nation 
are disturbed by the mixed messages they have received about 
mammographies over the last few years. One day we are told if you are 
over 40, have one every 5 years. Then we are told, if you are over 50, 
have one every year. Then we are told you do not need to have one until 
you are a certain age.
  Those messages are disturbing because they will cause women not to 
have mammograms.
 And when we go in to have one, we want to know that it is safe, 
effective, and we can be assured of that.

  This amendment will assure that this bill will not undo the important 
progress that we have made on this issue in the past several years. I 
strongly urge all of my colleagues to accept this amendment so that we 
can move to a better bill.
  Thank you. I yield the floor.
  Mrs. BOXER. Mr. President, at this time, I would rather withhold the 
rest of my debate until I get to lay down the amendment.
  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. JOHNSTON. 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. JOHNSTON. Mr. President, I ask unanimous consent that coauthors 
be added to the pending Baucus amendment as follows: Senators Johnston, 
Lautenberg, Bradley, Murray, Feinstein, Reid, Moynihan, Glenn, and 
Kennedy.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. JOHNSTON. 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. GLENN. 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. GLENN. Mr. President, we were discussing the proposal by the 
Senator from California, Senator Boxer. I wanted to rise in support of 
the concerns she has expressed here. I think they are very valid. 
Yesterday, when we were talking about different areas that would be 
affected if we did not change the April 1 deadline, mammography was one 
of those things that would be affected and would have the potential of 
being delayed for almost an indefinite period, if they were forced to 
go back and start the same risk assessment, the same analysis program, 
all over again.
  Some of the pending rules that would be affected we listed yesterday, 
such as lead soldering, iron toxicity, a whole list of those. One was 
mammography. Let me read from a little summary of why we are concerned 
about this.
  The Mammography Quality Standards Act of 1992, MQSA, requires the 
establishment of quality standards for mammography clinics covering 
quality of films produced, training for clinic personnel, 
recordkeeping, and equipment. MQSA resulted from concerns about the 
quality of mammography services that women rely upon for early 
detection of breast cancer. FDA is planning to publish proposed 
regulations to implement the MQSA.
  The potential magnitude of these regulations is substantial, and that 
is what the distinguished Senator from California has been addressing.
  Improving the quality of mammography translates directly into early 
detection of breast cancer, and early detection of breast cancer 
increases the likelihood of successful treatment and survival. An 
intramural was published December 21, 1993. This publication of 
proposed regulations--in other words, follow-on--is planned for October 
1995, but it would not be exempt since that occurs after the April 1 
cutoff time period that is in the legislation now. So that would mean 
that under S. 343 the whole process would probably be started all over 
again.
  That is why I do not think we want to see that happen. I do not think 
we want to see the standards delayed unnecessarily and set back the 
rules and regulations and place untold thousands of women in additional 
danger.
  I certainly rise to support the proposal made by the distinguished 
Senator from California.
  In addition to that, I do not believe that the letter from the 
Secretary of the Department of Health and Human Services was entered 
into the Record. I ask unanimous consent that the letter from Secretary 
Shalala, dated July 12, addressed to the minority leader, be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                              Department of Health


                                           and Human Services,

                                    Washington, DC, July 12, 1995.
     Hon. Thomas A. Daschle,
     Democratic Leader,
     U.S. Senate,
     Washington, DC.
       Dear Senator Daschle: It is estimated that 46,000 women die 
     every year from breast cancer. It is the second leading cause 
     of cancer death in women. Early and accurate detection can 
     save thousands of lives.
       The Mammography Quality Standards Act (MQSA) of 1992, 
     enacted on October 22, 1992, 

[[Page S 9844]]
     established quality standards for mammography. MQSA resulted from 
     concerns about breast cancer and the quality of mammography 
     services upon which women rely for early detection of breast 
     cancer. The purpose of MQSA is to ensure all mammography done 
     in this country is safe and reliable.
       We have completed the first phase of this program. To 
     complete implementation, we must issue final rules that will 
     establish the full range of standards necessary for a 
     national quality assurance program. These rules have been 
     developed through extensive cooperation with the National 
     Mammography Quality Assurance Committee, including five 
     public meetings. The rules are scheduled to be proposed in 
     October.
       This proposal will include a number of the standards 
     required under the statute, such as guidelines for radiologic 
     equipment, consumer protection provisions, and breast implant 
     imaging.
       Improving the quality of mammography translates directly 
     into earlier detection of breast cancer, which increases the 
     likelihood of successful treatment and survival. Delay in 
     implementation of the final rule due to the unnecessary and 
     duplicative requirements that would be imposed by S. 343 will 
     delay significant improvements in this life saving program. I 
     urge you to ensure that the MQSA final rule be allowed to 
     proceed without delay.
           Sincerely,
                                                 Donna E. Shalala.

  Mr. GLENN. She points out some 46,000 women die every year from 
breast cancer. It is the second leading cause of death in women, and 
thousands of lives can be saved if we go ahead and get the standards 
out, get going with these things, set standards for mammography, x 
rays, and all the other things that go into this.
  The Mammography Quality Standards Act, enacted back in 1992, 
established some of these standards. The purpose of MQSA was to ensure 
that all the mammography that is done is safe and reliable, it does not 
cause more problems than it is trying to cure.
  The first phase of all this program has been completed. To complete 
implementation we need the final rules, still, that will establish the 
full range of standards necessary for a national quality assurance 
program.
  There has been extensive cooperation with the committee that is 
dealing with this, the National Mammography Quality Assurance 
Committee, five public meetings and a lot of witnesses, and the rules 
are scheduled to be proposed in October of this year.
  The proposal will include a number of the standards required under 
the statutes, such as guidelines for radiologic equipment, consumer 
protection provisions, and breast implant imaging. Improving the 
quality of mammography translates directly into earlier detection and 
the likelihood of successful treatment and survival.
  The delay in implementation of this final rule, due to the 
unnecessary and duplicative requirements that would be imposed by S. 
343, because this does not meet the April 1, 1995, cutoff, will delay 
significant improvements in this life-saving program. So the Secretary 
urges the Senate to ensure that the MQSA final rule be allowed to 
proceed without delay. That is what the Senator from California does. 
That is the reason I rise to speak on behalf of her proposal.


                         Privilege of the Floor
  Mr. GLENN. Mr. President, I ask unanimous consent that Lisa Haage be 
permitted privilege of the floor during consideration of S. 343.
  The PRESIDENT pro tempore. Without objection, it is so ordered.


                           Amendment No. 1517

  Mr. BAUCUS. Mr. President, I would like to speak in favor of the 
pending amendment. This amendment is a very simple amendment.
  Essentially, it is to delete section 628 of the bill, that section 
now currently in the bill that makes specific changes to Superfund and 
other hazardous waste cleanup. Simply put, changes to Superfund, I 
believe, do not belong in this bill. It is as simple as that. This 
regulatory reform bill was considered earlier in the House, and in 
earlier versions, this section was not in the bill. Somehow, somebody 
later added in this section, section 628.
  What does it do? Essentially, it says that all the Superfund 
provisions now also apply to regulatory reform.
  I do not think that makes sense. That is a substantive change to a 
regulatory reform law. Much worse, Mr. President, in doing so--that is, 
including Superfund in regulatory reform--the net result is we would 
have a present bad situation made much worse.
  Let me explain. If section 628 is enacted, that is, the provision in 
the bill which includes Superfund to the new cost-benefit and risk 
assessment provisions in regulatory reform, the Superfund program that 
currently exists in our country becomes much more complicated, not 
less.
  All across the country hundreds of hazardous waste cleanups would be 
disrupted. They would be delayed. In some cases, they would be halted. 
If we can believe it, section 628 would actually make the present very 
complicated, very unfortunate and very disrupted Superfund program even 
slower, even more complicated, and much more bureaucratic than it 
already is.
  I am reminded of the late sage of Baltimore, H.L. Mencken. He once 
said, for every complicated, complex problem there is a simple 
solution. It is easy. But it is usually wrong.
  I cannot think of a better example of that statement of his. That is, 
Superfund reforms are very complicated problems. What is the simplest 
solution presented in this bill? It includes Superfund reform in 
regulatory reform. Simple--and it is wrong.
  I do not want any person to misunderstand. Those that want to delete 
section 628 are not defending the status quo. We are not defending the 
present Superfund program. Far from it. The Superfund has plenty of 
problems. It must be corrected.
  Let me remind my colleagues that Superfund was a hastily drafted law 
back in 1979. It was an immediate response to Love Canal. Like most 
hastily drafted laws, it does not work very well. It was not thought 
through. Therefore, it is inefficient, ineffective, and many too few 
cleanups and too many lawsuits.
  There are currently 1,300 cleanup sites--roughly 40,000, but EPA says 
1,300--down from 40,000 to 1,300. Mr. President, 15 years into the 
program, out of that 1,300 Superfund sites in our country--that is, 
cleanup of toxic waste--only 278 have been cleaned up. Mr. President, 
15 years, out of 1,300, only 278 have been cleaned up. If we continue 
at this rate, we will finish the job by the year 2040. I might add, 
just in time for my 108th birthday.
  Unfortunately, the program is slowing down, the present Superfund 
program. It is not speeding up, it is slowing down. It now takes almost 
10 years to clean up an average site, and the cost is roughly $30 
million per site, and about 30 percent of the money is spent not in 
cleanup costs but rather on litigation. When as much as 30 cents to the 
dollar goes to lawyers, Mr. President, I think we all think something 
is wrong with the program.
  I bet that every Senator has his or her own frustrating personal 
experience with the Superfund--a site where studies have piled up for 
years, where delay has dragged on, where lawyers and accountants have 
made money hand over fist, and the local community is left holding the 
bag, and where people have become angry. They want, Mr. President, 
sites to be cleaned up so they can get on with their lives.
  There are several steps that we should take to improve Superfund. 
First, we should establish an allocation system to fairly distribute 
the cost of cleanups among responsible parties. Current law does not do 
that.
  We should reform the liability system so that small businesses and 
municipalities are not dragged into burdensome lawsuits.
  We should improve cleanup standards and take better account of 
science, economics, and future land use.
  And we should increase community involvement in the cleanup process. 
Right now, the communities are not involved enough in the early stage 
of Superfund. If they were, the program could work better because the 
local folks could say we want this site cleaned up to a higher standard 
for playground use but this other site cleaned up to a lower standard 
for industrial use. The communities, the local people, have a much 
better idea what that remedy selection should be.
  There are other changes we should make to the program.
  Each of the steps is a bit complex. Each requires tradeoffs. Each 
should be taken carefully. But each step is necessary.
  This is why Superfund reform is a top priority of the Environment and 
Public Works Committee. Last year, the committee reported a bill that 
overhauled 

[[Page S 9845]]
Superfund from top to bottom, and this year the committee has had seven 
hearings, and the subcommittee chairman, Senator Smith from New 
Hampshire, has proposed a sweeping set of reforms and plans to hold a 
markup very soon.
  So the difficult work of rolling up your sleeves and getting the job 
done of reforming Superfund is well underway and is being undertaken 
the right way.
  Unfortunately, section 628 does not advance the cause of reform. It 
sets it back. It takes us in the wrong direction.
 In a nutshell, section 628 subjects any Superfund cleanup or other so-
called environmental management activity that costs $10 million or more 
to the risk assessment and cost-benefit provisions of the bill. That 
sounds pretty straightforward. But consider two points.

  First, this would apply a different standard for risk assessment and 
cost-benefit analysis than exists under current law. So, all of the 
risk assessment, remedial investigations, feasibility studies and other 
analysis, and all that bureaucratic gobbledygook that has been done 
under current law is out the window. Go back to the beginning, this 
section says. Do it all over again.
  Second, the new standard applies to hundreds of sites, including many 
sites where cleanup decisions have already been made and even sites 
where construction work has already begun.
  Let me give an example. In my State of Montana we have the largest 
Superfund site in America, the Clark Fork River, the result of hundreds 
of years of large-scale copper mining. It stretches 120 miles from 
Butte, MT, to Missoula. It has 23 priority sites. Only two are cleaned 
up.
  We have been working for years to get EPA to stop studying and start 
cleaning up. The studies have cost more than $50 million and now, after 
years of talk, we have a plan that is finally ready to go. EPA, the 
State of Montana, the people of Butte, and the responsible company, 
have agreed on innovative, cost-effective solutions at several spots 
along the Clark Fork River.
  In Butte, for example, rather than remove lead contamination from the 
soil everywhere, it will only be removed at priority sites, where 
children live and play. And to make sure that children remain safe 
under the plan, they will be monitored. This solution makes sense. It 
is the most sensible way to do the job, and the citizens are anxious to 
get started. But this bill stops all that dead in its tracks. Montana's 
Governor, Marc Racicot, wrote me last Friday with this comment.

       If it was necessary to undertake the kind of cost-benefit 
     analysis and risk assessment called for in the bill for these 
     response actions, given how long it would take to do this, 
     the clean-up of these sites, if such clean-up occurred at 
     all, would not occur until well into the 21st century.
       This is all the sillier when one considers that EPA 
     routinely prepares risk assessments and undertakes a form of 
     cost-benefit analysis when it makes a decision.

  So the cleanup at the Clark Fork will grind to a halt. The cleanup 
will stop until yet another study is completed. The families and 
children of Butte, Anaconda, Deer Lodge, Bonner, Lolo, Missoula, and 
all the other towns on the river that live with pollution, fish kills, 
and threats to drinking water for years longer will have to suffer. And 
if the cleanup standard established after these new studies is too low, 
the damage will be magnified. And all to no purpose, because the EPA 
has already done the work.
  Let me give another example: The streamside tailings along Silver Bow 
Creek. Here, the State has just completed a detailed study of seven 
different options for cleaning it up and the people in the community 
have thought it through. Among other things, they will turn part of the 
site into a ``greenway'' with bike trails and hiking trails and picnic 
areas. But only one of the seven options is less than $10 million, the 
threshold under the bill, and that is the option of doing absolutely 
nothing. So any decision to clean up the site, even minimally, will 
require new cost-benefit studies to be repeated. Once again, the 
community's plan gets delayed and maybe even gets thrown out the 
window.
  Jack Lynch, the chief executive of Butte-Silver Bow County, wrote me 
to express concern about another cleanup--Berkeley Pit. The pit is an 
open copper mine just outside of Butte, abandoned when the Anaconda Co. 
left town in the early 1980's. Mr. President, I wish you could see this 
abandoned pit. It is about a mile and a half wide. Every day it is 
filling up with about 6 million gallons of what you can loosely call 
water. In fact, it is a liquid so acidic it might burn your eyes out if 
you attempted to use it to wash your face. The water is so deep now, 
you can even see waves on a windy day, and if it is not stopped, it 
will threaten Butte's ground water. Despite these problems, the bill, 
the one pending before us, would force the people of Butte to endure 
more studies and more delay.
  I can tell you, the people of Butte are up to their necks in studies. 
They would rather have something done.
  Mr. President, I ask unanimous consent the letters from Governor 
Racicot and Chief Executive Lynch be printed in the Record.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                                           Office of the Governor,


                                             State of Montana,

                                         Helena, MT, July 7, 1995.
     Hon. Max Baucus,
     U.S. Senate,
     Washington, DC.
       Dear Senator Baucus: I write to express concern over 
     certain aspects of the Comprehensive Regulatory Reform Act of 
     1995, as introduced on June 21, 1995. In short, I am deeply 
     concerned that the bill, if enacted into law, would frustrate 
     response actions and restoration of the Upper Clark Fork 
     River Basin NPL sites.
       In order to explain the basis for my concern, a brief 
     discussion of my understanding of the bill follows: Section 
     628 of the bill imposes requirements for major environmental 
     management activities. The bill defines these activities to 
     include response actions and damage assessments costing more 
     than 10 million dollars pursuant to the Comprehensive 
     Environmental Response, Compensation, and Liability Act. Such 
     activities must meet ``decisional criteria'' established 
     under Sec. 624 of the bill. In order to ensure that the 
     decisional criteria are met, an agency must prepare a cost-
     benefit analysis and risk assessment (the requirements for 
     which are set forth in Subchapters II and III of the bill) 
     for all such activities pending on the date of enactment of 
     the bill or proposed after such date. However, the bill 
     appears to give an agency some discretion for actions that 
     are pending on the date of enactment or proposed within a 
     year of such date. For these actions a cost-benefit analysis 
     or risk assessment under Subchapters II and III need not be 
     prepared, but an agency can use alternative analyses in order 
     to determine that the decisional criteria are met. For all 
     risk assessments prepared by an agency, even a non-Subchapter 
     III risk assessment, Sec. 623 allows an interested person to 
     petition an agency to prepare a revised risk assessment and 
     then allows for judicial review of the agency's decision.
       The decisional criteria of Sec. 623 envision two scenarios. 
     The first scenario mandates that an agency determine 1) that 
     the action's benefits justify its costs, 2) that the action 
     employ ``flexible'' alternatives ``to the extent 
     practicable,'' 3) that the action adopts the least cost 
     alternative that ``achieves the objectives of the statute,'' 
     and 4) that the action, if a risk assessment is required, 
     ``significantly reduce risks'' or if such a finding can not 
     be made, that the action is nonetheless justified and is 
     ``consistent'' with Subchapter III (which sets forth 
     requirements and standards for risk assessments). The second 
     scenario is when an agency cannot make a finding that an 
     action's benefits justify its costs. In this case, an action 
     must meet all the other criteria identified above and an 
     agency must prepare and submit to Congress a written 
     explanation of its decision.
       Section 624 specifically states that its requirements 
     ``shall supplement and not supersede any other decisional 
     criteria. . . .'' Section 628, regarding major environmental 
     management activities contains this same statement.
       As you are aware, EPA and the State of Montana are 
     presently engaged in a cooperative effort to determine and 
     implement appropriate response actions to address adverse 
     impacts to human health and the environment at the Upper 
     Clark Fork Basin NPL sites. As you are also aware, response 
     actions have been completed, are ongoing, have been proposed, 
     and are in the RI/FS developmental stage.
       It is important to note that Sec. 628 would apply to 
     virtually all response actions, even ongoing response 
     actions. Section 628 applies to ongoing response actions 
     unless ``construction or other remediation activity has 
     commenced on a significant portion of the activity'' and it 
     is ``more cost-effective to complete the work'' than to 
     undertake the analysis called for by Sec. 628 or the delays 
     caused by undertaking the analysis will ``result in 
     significant risk to human health or the environment.'' This 
     exclusion is so narrowly drawn that almost all response 
     actions, including ongoing response actions at the Clark Fork 
     sites, would be subject to the requirements of Sec. 628.
       For a pending action, which presumably means either an 
     ongoing response action or a response action for which there 
     is a ROD, or 

[[Page S 9846]]
     for a response action that is proposed within a year after the bill's 
     enactment, which presumably means a proposed plan on a ROD, 
     an agency apparently does not have to prepare a risk 
     assessment or a cost-benefit analysis pursuant to the 
     requirements of the bill. Rather, an agency may use 
     alternative methodologies to make such a determination.
       Thus, at a minimum, the requirement to prepare a cost-
     benefit analysis and risk assessment will apply to actions 
     proposed more than a year after enactment. If enacted in this 
     session, the bill would likely impose these requirements for 
     several response actions. For example, the response actions 
     for the Clark Fork River and Anaconda Regional Water and 
     Waste are some years away. If it was necessary to undertake 
     the kind of cost-benefit analysis and risk assessment called 
     for in the bill for these response actions, given how long it 
     would take to do this, the clean-up of these sites, if such 
     clean-up occurred at all, would not occur until well into the 
     21st century.
       This is all the sillier when one considers that EPA 
     routinely prepares risk assessments and undertakes a form of 
     cost-benefit analysis when it makes a decision. The bill, 
     however, would require preparation of its highly 
     particularized form of these two analyses, while imposing an 
     entirely new layer of what can only be termed ``bureaucratic 
     requirements'' for the performance of these tasks. The end 
     result would be to make the performance of risk assessments 
     and cost-benefit analyses much more onerous than what EPA 
     presently does.
       Another problem with the bill concerns it provisions for 
     petitions to revise risk assessments. Thus, non-Subchapter 
     III risk assessments that accompany response actions can be, 
     and will be, challenged. Allowance for judicial review will 
     then cause the particular response action to
      remain in a holding pattern while the sufficiency of the 
     risk assessment is litigated. The end result will be more 
     lawyers and delay.
       Regardless of whether a strict cost-benefit analysis or 
     risk assessment has to be prepared, all response actions 
     (except those falling within the narrow significant 
     commencement of construction exclusion) must meet the 
     decisional criteria of Sec. 624. Thus, ongoing response 
     actions, response actions for which there is already a ROD, 
     and proposed ROD's will have to retrace their steps and 
     reopen their proceedings in order to make the findings 
     required by this section. And all this after an extensive 
     administrative process, with input from the potentially 
     responsible parties and the public. The lack of finality, 
     which this bill condones and even promotes, results in 
     inefficiencies and, of course, prevents a timely clean-up. I 
     do not believe that such a process constitutes an improvement 
     over the present statutory and regulatory scheme.
       Then there is the question of the nature of the criteria. 
     The bill states that the criteria do not supersede but only 
     supplement any other decisional criteria provided by law. 
     This may be a distinction without a difference. The 
     decisional criteria mandate specific findings. Thus, they 
     supplement and supersede the cleanup standards of Sec. 121 of 
     CERCLA. In any event, and notwithstanding the provisions of 
     Sec. 121, it is clear that the response action must meet the 
     decisional criteria of Sec. 624.
       The decisional criteria are not without problems, however. 
     For example, when do benefits justify costs? Put another way, 
     is justification synonymous with benefits > costs? Leaving 
     aside definitional problems, which will lead to much 
     litigation, discourage settlements and cooperation between 
     the PRP and EPA, and put cleanups on a slow track, such a 
     requirement is unnecessary. When EPA undertakes a response 
     action it has made a determination that based on the 
     statutory standards, which include that EPA consider costs, 
     the societal benefits from that action justify undertaking 
     it. This is nothing more than a cost-benefit analysis.
       Another of the decisional criteria requires that the least 
     cost alternative that achieves the objectives of the statute 
     be selected. This criteria is also highly problematic. For 
     example, two alternative response actions exist at a 
     particular site. One is less expensive than the other but 
     does not protect public health and the environment to the 
     degree that the more expensive alternative does. Accordingly, 
     both alternatives accomplish, but to varying degrees, the 
     objectives of CERCLA. Under this criteria, however, the lower 
     cost alternative would have to be selected, even if the other 
     alternative was slightly more expensive but significantly 
     more protective of public health and the environment. This is 
     nonsensical.
       The consequences on the Upper Clark Fork Basin NPL sites 
     from the bill would be drastic. To the extent EPA is required 
     to perform the risk assessments and cost-benefit analyses as 
     set forth in the bill, cleanup actions would be delayed for 
     years. Any risk assessment by EPA could also be challenged in 
     petition proceeding. Timely cleanup will also be frustrated 
     by the decisional criteria. PRPs, will utilize the vagueness 
     and uncertainty associated with the criteria as leverage.
       Thus, PRPs will be unwilling to enter into consent decrees 
     and more willing to take their chances in court armed with 
     the criteria. This will cause fewer settlements of actions. 
     It will also, of course, create pressure on EPA to settle for 
     less. Similarly, even if EPA is unwilling to settle on the 
     terms of the PRPs, EPA will have to take into account the 
     risk that its action may not be upheld if challenged. 
     Accordingly, EPA will seek less in its remedy than it would 
     otherwise. As a consequence, the cleanup of the Upper Clark 
     Fork Basin NPL sites both in terms of its timeliness and its 
     completeness will be jeopardized. Given the impacts to public 
     health and the environment in this area, and the degree to 
     which it will likely not be possible to fully remediate these 
     impacts, any lessening of cleanup will be significant indeed.

                           *   *   *   *   *

       The bill also presents a significant threat to the State of 
     Montana's natural resource damage litigation and 
     concomitantly the obligation of the State acting as trustee 
     on behalf of its citizens to redress injuries to natural 
     resources and make the public whole.
       Major environmental management activities are also defined 
     to include ``damage assessments.'' There is only one form of 
     damage assessment under CERCLA and that is a natural resource 
     damage assessment. Accordingly, it is clear that the bill is 
     attempting to bring within its scope actions related to 
     natural resource damage recovery. It is not entirely clear 
     that the bill is successful in this regard because the bill 
     imposes its requirements on ``agencies.'' Under CERCLA, 
     however, natural resource damages are recovered on behalf of 
     trustees. Notwithstanding the use of the term ``agency,'' it 
     is likely that the bill would be read to impose its 
     requirements on trustees given its clear intent to reach 
     recoveries of natural resource damages.
       Thus, the State of Montana, in the pursuit of its natural 
     resource damage case, would be bound by the same requirements 
     as EPA for response actions. Restoration actions have not 
     commenced so the State's natural resource damage assessment 
     and restoration plan would be subject to the bill.
       There are two principal problems. First, the bill would 
     necessitate that the State's assessment and restoration plan 
     be revised to meet the new requirements. This would present a 
     real problem for the State since the litigation is proceeding 
     forward. To revise the State's assessment would bring the 
     litigation to a screeching halt, undo much work that has 
     already been done, and would extend the litigation and 
     administrative process on which the litigation depends for 
     years. It would also cost the State hundreds of thousands of 
     dollars to comply with the bill's requirements.
       More fundamentally, however, the bill seems to eliminate 
     the possibility of the State recovering restoration costs. In 
     the State's restoration plan various alternatives were 
     identified that would ``restore'' the resource. The plan 
     acknowledged that given the severity of the injury, actions
      could not be performed that resulted in immediate or near-
     term restoration, but felt that this fact should not act 
     to disable the State from taking actions that mitigated 
     injury and so hastened--somewhat--the eventual full 
     recovery of the resource. The plan further acknowledged 
     that in the end resources would be restored as a result of 
     natural recovery. As noted, various alternatives were 
     proposed that to varying degrees mitigated injury. One 
     alternative that was always considered was the alternative 
     of natural recovery. This alternative will result in the 
     restoration of resources in the Upper Clark Fork Basin; 
     however, restoration will not occur for thousands or tens 
     of thousands of years. Since the purpose of the natural 
     resource damage provions of CERCLA is restoration and 
     since natural recovery will accomplish restoration and 
     will almost always be the least cost alternative 
     considered, the bill's decisional criteria would mandate 
     the selection of this alternative notwithstanding any 
     other considerations.
       Please object to the provisions of the Regulatory Reform 
     Act that would be harmful to the interests of the State of 
     Montana.
           Sincerely,
                                                     Marc Racicot,
     Governor.
                                                                    ____

                                                 Butte-Silver Bow,


                                                   Courthouse,

                                         Butte, MT, June 28, 1995.
     Senator Max Baucus,
     U.S. Senate,
     Washington, DC.
       Dear Senator Max Baucus: I am writing today to express my 
     concerns about certain provisions of the Regulatory Reform 
     Bill. While I surely understand the need for reform, and I 
     applaud the Senate for taking a leadership role in the 
     development of sound reform policy, I have serious 
     reservations that the provisions related to new cost-benefit 
     analyses for Superfund sites will damage and delay ongoing 
     clean-up efforts in Butte and sites along the Clark Fork 
     River.
       I can understand how a thorough cost-benefit analysis would 
     be useful for a new site or sites that are early in the 
     process of investigation. However, in Butte, we are well down 
     the road in the decision-making process for several 
     ``operable units'' within the four NPL sites. There are 
     Records of Decision and various Decrees for several sites, 
     such as the Berkeley Pit/Mine Flooding area, the Montana Pole 
     Treatment Plant, the Lead Poisoning Prevention Program, the 
     Priority Soils Area, Lower Area One/Colorado Tailings, and 
     most recently, the Streamside Tailings along Silver Bow 
     Creek. The prospects of stopping this progress to conduct 
     additional cost-benefit analyses (as per the draft provisions 
     of the legislation, Sections 624 and 628) would be damaging. 

[[Page S 9847]]

       I can assure you that, in Butte, cost has been a 
     significant factor in the decision-making process. In our 
     efforts to work with the regulatory agencies and the PRP's in 
     our area, we have developed a very practical view of the 
     balance between clean up and resources expended. We have 
     worked hard to incorporate and substantially address cost 
     considerations in the remedy selection process.
       Senator, I would ask that you ensure that any new 
     legislation designed to provide regulatory reform does not, 
     in the process, slow down the work already in progress where 
     significant decisions have been made. If you would like 
     additional information, please do not hesitate to contact me.
           Sincerely,
                                                       Jack Lynch,
                                                  Chief Executive.

  Mr. BAUCUS. Section 628, the section I think should be deleted, 
clearly causes big problems for the State of Montana. But not just the 
State of Montana. In fact, my best estimate is the provision affects at 
least 650 Superfund sites across the country. That is virtually every 
State. Let me give the numbers.
  Today, studies are underway at 263 Superfund sites. Remedies costing 
more than $10 million have been selected at 285 sites. And cleanup is 
underway at 430 sites. We do not know how many of these 430 exceed the 
$10 million threshold, but the average cleanup cost is $30 million. So, 
obviously, most exceed the threshold. So a conservative estimate is 
that half of the 430 sites exceed the threshold.
  This chart at my left illustrates what would happen to these sites 
under this bill. Consider the 285 sites where a remedy has already been 
selected. At each site there has been extensive study, public 
involvement, and negotiation. After years, people have finally agreed 
about how to clean up the site.
  Let me refer to the chart more fully. Now, as I said, there are about 
263 of the sites where study is underway, in red. The yellow shows 
there are 285 sites where the remedy has been selected. And the green 
shows there are 430 where there is ongoing cleanup. That is the current 
situation.
  If S. 343 passes, including the section which we want deleted, what 
will the result be? The result would be twice as many studies. And it 
will mean--as the chart shows, only half as many sites will be cleaned 
up. That is a conservative estimate of the consequences of this bill. 
These sites will get thrown back for further study, which could take 
years.
  Consider the 430 sites where there is an ongoing cleanup. Those sites 
also get thrown back into further study, unless we can prove the 
construction has commenced on a ``significant portion of the 
activity,'' whatever that means, and if other criteria are met.
  So putting all this together, the impact of section 628 is very 
simple. The number of studies will double and the number of Superfund 
cleanups will be cut in half. This chart shows it. The red is the 
number of studies which will double. The green shows cleanups which 
will be cut in half.
  I will say that once more. The number of studies will double and the 
number of cleanups are cut in half. A lot more redtape. A lot less 
cleanup. I do not I think that is what we want to do.
  All across America people will wake up and discover that the 
purported regulatory reform bill has a very surprising effect. They 
will discover that virtually with no notice whatsoever, Congress has 
stopped Superfund cleanups dead in their tracks, and the residents of 
frustrated and exhausted communities will discover to their amazement 
that Congress has decided that Superfund sites need more study, more 
analysis, and more talk before a single shovelful of dirt can be moved 
or a single thimbleful of groundwater could be pumped.
  Before concluding, I would like to repeat a point I made earlier. I 
am not defending the status quo. Superfund needs to be reformed. And 
some of the needed reforms may well relate to risk assessment and cost-
benefit analysis. The Environmental and Public Works Committee reform 
efforts are well underway. But the issues are complex, they are 
controversial, and we cannot reform Superfund overnight.
  Ironically, the bill repeats the same mistakes that the original 
drafters of Superfund made in 1980; that is, it is a hasty 
overreaction. It is a quick fix. It will cause a lot more problems than 
it would solve. But it is likely to have a very harsh consequence as 
well for the people who want their neighborhoods cleaned up and have 
already suffered enough.
  H.L. Mencken must be smiling as he looks down on us from heaven 
today. We are addressing a complex, difficult issue and we are 
considering a simple, straightforward, easy solution that is dead 
wrong.
  It is for these reasons I urge my colleagues to support my amendment 
and strike this provision from the bill.
  Several Senators addressed the Chair.
  Mr. GLENN. Mr. President, parliamentary inquiry: Earlier on we were 
waiting for a reply to a proposal by Senator Johnston on the Superfund 
withdrawal bill. The majority leader indicated that he would check on 
his side and get back to us. I believe it was agreed--correct me if I 
am not correct--that the Senator from California, Senator Boxer, was to 
be recognized to speak on her amendment with the idea that, if the 
majority leader came back, we would then complete action on the 
Johnston proposal after which time she would be permitted to continue.
  Is that correct?
  The PRESIDING OFFICER. The agreement provided that once the Johnston 
amendment is disposed of, the Senator from California may offer her 
amendment.
  Mr. GLENN. Yes. We were getting in a little time situation here where 
the Senator from New Jersey was going to speak I believe on a similar 
subject. I wanted to make sure everybody was aware of what the 
parliamentary situation was in case the majority leader comes back to 
the floor and we finish the work on the Johnston amendment.
  Mr. LAUTENBERG. I want to be sure. I intend to speak on the Superfund 
amendment, though I support the amendment by the Senator from 
California. And I assume that, once having that recognition from the 
floor, I will be able to continue my remarks.
  Mr. HATCH. Will the Senator yield for a parliamentary inquiry?
  Mr. LAUTENBERG. Yes.
  Mr. HATCH. I thank my colleague.
  Mr. President, as I understand it--correct me, if I am wrong--as soon 
as the Superfund amendment is disposed of one way or the other then 
anybody can call up an amendment. Or is it by unanimous consent that 
the Senator from California would have the right to call up her 
amendment?
  The PRESIDING OFFICER. The agreement provided that the Senator from 
California would have the right to call up her amendment.
  The Chair previously recognized the Senator from New Jersey.
  The Senator from New Jersey.
  Mr. LAUTENBERG. The Senator from New Jersey would be happy with a 
unanimous-consent agreement to yield to the Senator from Montana to 
permit him to make his inquiry and to conduct such business as he would 
like.
  Mr. BAUCUS. Mr. President, I ask for the yeas and nays on the pending 
amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. BAUCUS. I thank the Chair.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. LAUTENBERG. Mr. President, I thank my colleagues for clearing the 
agenda.
  Mr. President, I want to take this opportunity to talk about the 
section 628 of the pending regulatory reform bill. I am delighted to 
cosponsor this amendment. It deals with environmental cleanup.
  As the former chairman and current ranking member of the Environment 
and Public Works Committee with the jurisdiction over Superfund, I 
believe that adoption of this amendment is critical to achieving real 
reform in the program. Let me begin by explaining it.
  The language sought to strike has nothing to do with reforming the 
regulatory process. It has everything to do with undermining and 
invalidating specific regulations. It does not allow the reform 
regulatory process to work. Rather, it is an effort to mandate an 
outcome of that process.
  The Superfund provision in the Dole-Johnston substitute makes an 
exception to the general rules established in the bill so that efforts 
to regulate Superfund sites--and only Superfund sites--are to be 
treated differently 

[[Page S 9848]]
than all other regulatory actions. As we know, the bill currently says 
that only if a regulatory decision costs more than $100 million it is 
considered a major rule, thus triggering lengthy reviews and certain 
protections in the bill. Only a small percentage of Superfund sites 
involve costs of more than $100 million. As a result, most Superfund 
sites would be exempt from the procedures I just mentioned that are 
established by the bill.
  That was apparently unacceptable to those who want to avoid costs and 
delay in cleanups. As a result, they created the lower threshold of $10 
million which would apply only to Superfund sites. And if that triggers 
some suspicion in the minds of those who are trying to figure it out, 
that suspicion is warranted. Every other regulatory decision has to 
cost more than $100 million before it is considered a major rule. But 
at Superfund sites--and only there--the threshold will be considered to 
be a major rule when it starts at $10 million.
  There is no logical explanation of why; no justification for the 
exception, just a little provision that treats Superfund differently 
than any other program in the Federal Government.
  Mr. President, to me it is obvious that there is intentionally or 
otherwise a mission here that would emasculate the Superfund program. 
That may satisfy some who will do what they can to delay the cleanups 
required, or at least for it to kill the program. It may help those who 
want to escape their obligation to pay for the cleanup of sites but it 
will not satisfy those who want to get after the environmental blight, 
and it should not satisfy anyone who wants to protect the health and 
safety of the millions of Americans who live, work, or play near 
Superfund sites.
  By the way, for many, that is not an option. That is where home is. 
That is where work is. That is where a school might be. They did not 
choose to build or to live near these sites. But, unfortunately, once 
these environmental problems were discovered it was a new learning 
experience for people. Suddenly, they learned that perhaps the water 
supply may be contaminated or the ground that their kids are playing on 
may be dangerous for them.
  One of the many unintended impacts of this bill is the dead certain 
proposition that it will make the problems that plague the Superfund 
program worse.
  This bill would have the effect of stopping Superfund cleanups in 
their tracks apparently under the theory that we need to spend more 
time doing more studies before deciding what we can do to clean up the 
mess that we have already been studying for years and years.
  Let us be candid. The Superfund program already contains an extensive 
risk analysis and cost-benefit evaluation. The private parties who are 
responsible for the cleanup are already involved in the remediation 
process. And so is the affected community. The criticism of the 
Superfund program is that it studies too much and does too little. Look 
at what we do already.
  Superfund site remediation decisions are not made casually or without 
consideration of risks or cost benefit. Under the present law, EPA must 
conduct numerous studies and consider costs and other factors in 
selecting a cleanup remedy. During the remedy selection phase, a 
detailed risk assessment is conducted by looking at the people and the 
environment exposed to the risks associated with the Superfund with 
this toxic site. For the pathways of exposure, such as ground water, 
surface water, air, soil, however, the contamination travels in the 
specific contaminants present at the site.
  Following these studies, EPA announces a proposed cleanup approach, 
receives public comment on that approach, and issues a record decision 
to memorialize its final cleanup decision.
  Often the private parties performing the studies in cleanups have 
been very involved in developing the appropriate remedy. We do all of 
that now. Yet, S. 343 says that we ought to do more studies which 
would, of course, mean less cleanup. It allows a party to reopen the 
whole process once a decision about how a cleanup process ought to 
proceed. In fact, it will allow a party to reopen the whole program 
even after construction and implementation of the cleanup program has 
begun.
  This legislation virtually requires an expensive, slow, and often 
duplicative study process even if the private parties involved are not 
wanted and did not believe it was necessary. This bill would virtually 
require reconsideration and reevaluation of the cleanup strategies that 
are being developed and instituted at hundreds of sites. This would be 
a tragic development and a tremendous waste of resources. It would 
cause great consternation at the sites where communities have 
negotiated and agreed to a level of cleanup that could be overruled by 
this law.
  How do we explain to the residents living near Superfund sites that 
we are going to throw out years of study, years of work, and 
construction in many cases and stop and restudy the whole cleanup from 
start to finish?
  During the last Congress, EPA, industry and the environmental 
community produced a set of consensus proposals to reform Superfund, to 
reduce litigation, to speed cleanups, to cut repetitive analysis and to 
improve public participation in the cleanup process.
  Mr. President, I was again then chairman of the subcommittee, and 
everybody worked hard--Democrats, Republicans, the administration, 
outside groups, be they industry, academic, Government, 
environmentalist. Everybody pitched in to try to reform Superfund 
because there have been problems with it. No one can deny that. But its 
mission is a purposeful one.
  As a result of some obstruction, we did not pass that reform 
Superfund proposal. Frankly, I thought it was an environmental tragedy 
after so much work and so much agreement had been hammered out with 
parties that typically disagree, and here we are today now first 
reviewing the Superfund program. Once again, it is nearing its 
expiration date. Lots and lots of money has been spent, billions by the 
way, and much of it in the learning process because, unfortunately, it 
was not the job that we expected to have to do when we set out to do 
it. It took a lot more because the toxic contamination was a lot worse, 
and as a consequence we are now in a situation where the moneys spent 
up front are beginning to pay off. But we did not get the chance, we 
did not have the outcome that we wanted to have to speed cleanups and 
to reduce litigation costs.
  Additional changes to speed cleanup are now being considered in the 
Environment and Public Works Committee, and they are likely to be 
approved. This bill threatens to go in the opposite direction by 
increasing litigation, adding more needless analyses and slowing 
cleanups while saddling EPA with new paperwork burdens.
  Now, I am working with the chairman of the Superfund subcommittee, 
Senator Smith of New Hampshire, on Superfund reform and 
reauthorization. We do not necessarily agree about how the program 
ought to be changed, but the fact is that we are talking, and we are 
bringing in witnesses, and we have had testimony and hearings. I think 
it has improved the atmosphere as well as the possibility that 
Superfund reform is going to be accomplished in fairly short order. I 
believe that we agree that reform is supposed to increase speed and 
reduce redundant studies.
  This bill is inconsistent, Mr. President, with that vision of reform. 
It is also inconsistent with a serious effort to get Superfund reformed 
and reauthorized rather than have this buried as a subsection of this 
long and complex bill dealing with regulatory reform. This is not the 
way to do business.
  Mr. President, Superfund is not necessarily popular with everybody, 
but cleaning up our hazardous waste is a mission that all of us I 
believe can agree upon. It is a very expensive proposition. It has been 
looked at over the last 50 years, and finally in 1980, a law was 
established to move the process along.
  Now, private parties do not like cleaning up the mess if they caused 
it or if they are found jointly or severally responsible. Insurance 
companies do not like it because they have to pay the claims. But the 
strongest criticism of our hazardous waste cleanup programs is our 
unending studies to determine the proper remedy.
  In fact, Congress recently spoke to this issue. During the last 
rescissions bill, $300 million was rescinded from the Department of 
Defense cleanup program because it was felt that too 

[[Page S 9849]]
much money was being spent on studies and not enough on cleanups. This 
provision would require yet more money be spent on just such studies 
which would both delay cleanups and leave less money for that task.
  I do not want to go back to Superfund sites in my State and explain 
to my constituents who live near Superfund sites that agreed upon 
remedies are going to be reopened for a further round of studies.
  I do not want to have to explain that a new study phase will delay 
cleanup for years and years. They do not like that news. I do not want 
to have to tell them that cleanups already begun will suddenly be 
halted when they have already lived with threats to them and their 
family's health for already too long a period of time.
  Why is this delay inevitable? Well, in addition to the opportunities 
it gives to private interests to create delay, look at what it does to 
the Government's ability to move forward quickly. The EPA now processes 
about 10 major rules a year. Under this bill, it is estimated that EPA 
will have to do a complete risk assessment and cost-benefit analysis 
for about 45 major rules each year for the various programs it 
administers.
  I wish to make clear what happens with a major rule. It involves lots 
and lots of people. It involves lots of computer use. It involves lots 
of calculation. It involves lots of time and lots of money. This is not 
to say that we should not be doing studies. We should. But we have 
already done them, done them sufficiently I think to answer all of the 
concerns that people have. But if our amendment fails here and EPA must 
do a cost-benefit and risk assessment for Superfund sites over $10 
million, it will have to do approximately 650 additional risk 
assessments and cost-benefit analyses.
  Mr. President, my argument can be summarized in these three points. 
First, the bill before us treats Superfund in an unjustified, special, 
and unique way. It contains a special carveout for the particular 
interests that want to reduce or evade their responsibility to pay for 
cleanups.
  Second, the bill before us will inevitably delay cleanups, prolonging 
the risks those toxic hot spots pose to human beings and to the 
environment. That delay is a function of the overt mechanisms in the 
bill which require new studies and the practical inability of EPA to 
conduct the number of studies which will be required.
  We want EPA to be an organization that conducts cleanups. We do not 
want it to devote all of its time to doing studies.
  So the bill will cause delay in cleanup, the one thing that we all 
want to hasten.
  And third, there is no finding that these new studies are required. 
Superfund already has sophisticated cost-benefit and risk analysis. If 
you think there ought to be changes in the way that analysis is 
conducted, then require those changes when we reauthorize Superfund in 
an orderly process. Do not try to force them into a bill that has a 
much more general goal of reforming the process by which we regulate.
  Mr. President, we ought to let the authorizing committee handle 
Superfund. We are working toward that goal. And when we bring 
legislation to the floor we can understand it, we can debate it, and 
justify the decisions that we make. Doing reform in the backdoor manner 
proposed by this bill is totally unacceptable.
  I want to point out what is here on the chart to emphasize, that is, 
that presently we have already 430 sites where cleanup is underway. We 
have decisions being made at 211 sites. We have remedy selections at 74 
sites and studies already underway at 263 sites. If S. 343 passes as it 
is, then what we will do is we will have to study 763 sites. It means 
practically the end of serious decisions about cleanup and beginning 
the process.
  What we will be left with is 215 sites with cleanup underway, as 
opposed to 430, and decisions underway for 211 other sites. We will 
move into the study phase. This will turn out to be a calculous 
laboratory where everybody will be participating in studies and not 
getting work done and will exaggerate criticism that now exists that 
all we do is study things to death. We have studied things, I hope not 
to death, but we have studied them for a long time. The decisions are 
made on the science available, and there is an orderly process. We 
ought not tinker with it, but reform it in an orderly way.
  So, Mr. President, I urge my colleagues to support the motion that is 
now before us to strike the special relief language for special 
interests that are now in this bill. I yield the floor.
  Mr. KYL addressed the Chair.
  The PRESIDING OFFICER (Mr. Santorum). The Senator from Arizona.
  Mr. KYL. Thank you, Mr. President.
  I would like to make a few remarks regarding Superfund and the 
reasons why it is included in this legislation. There are a couple of 
anomalous things about the Superfund law. One of them is that there is 
no judicial review. And I think it is no coincidence that one of the 
laws that is working least well, a point that all of us would agree on, 
is also a law that provides for no judicial review. The second thing is 
that the Superfund law actually does provide today for some cost-
benefited analysis and risk assessment. So it is not a new concept when 
applied to this law.
  But the bill before us, the Dole-Johnston amendment, would really 
provide a more precise and meaningful procedure for applying that cost-
benefit analysis to Superfund so that the net result should be not more 
costly studies and delay, but a more precise application of a principle 
which is already required and which should make much more efficient the 
process for deciding the priority of sites to be cleaned up, and 
probably also make it easier if the judicial review provisions are put 
into place to really test those that need to be tested and allow the 
others to proceed to clean up.
  So we believe that S. 343 establishes strong, good requirements to do 
the right kind of risk assessment and cost-benefit analysis for 
Superfund cleanups. And, of course, the point also here is that it is 
in those cases that exceed $10 million. Now, we have heard arguments 
here by some that would like to see this section removed from the bill. 
I will make the point first of all that there is much more than 
Superfund in the amendment which would be removed from this bill. We 
will leave that for others to discuss.
  But just to focus on the question of whether the Superfund provision 
should be removed, in many respects Superfund is an example of the best 
of the worst. Unlike many other programs with tangible results, 
Superfund has almost nothing to show for its billions of dollars in 
expenditures of public and private funds, I might add.
  And again, this is a point upon which a lot of us would agree: 
Superfund has just not met the expectations that we had for it at the 
time that it was adopted. So clearly, more effective risk and cost-
benefit analysis are desperately needed for the program. These are the 
tools that the Government can use in carrying out the requirements of 
the law.
  So instead of trying to remove these provisions from the bill, we 
ought to be strengthening those procedures so we can really do the 
prioritization necessary to get to the job of cleaning up the sites 
that need to be cleaned up and leaving the others alone.
  As I said before, also ironically, Superfund already requires cost-
benefit analysis. It requires the President to select appropriate 
remedial actions that ``provide for cost effective response'' and to 
consider both the short-term and long-term costs of the actions.
  It requires the President to establish a regulation called the 
national contingency plan to carry out the requirements of the statute. 
This plan has several requirements that would contain methods for 
analysis of relative costs or remedial actions; means for assuring that 
remedial actions are cost-effective over time; criteria based on 
relative risk or danger for determining priorities among releases of 
hazardous substances for purposes of taking remedial action. The 
national contingency plan also requires a baseline risk assessment to 
be performed for every remedial action. This means that for every 
Superfund cleanup, a risk assessment is supposed to be done right now.
  It requires the President to identify priority sites that require 
remedial action through a hazard ranking system that must--again, I am 
quoting--``assess the relative degree of risk.'' 

[[Page S 9850]]

  So to suggest that somehow both cost-benefit and risk assessment are 
inconsistent with the Superfund is to ignore existing law. It is in the 
existing law. So by taking it out of that provision, we are not 
removing that concept. But what we are doing is preventing ourselves 
from providing a more effective means of applying the cost-benefit and 
risk assessment to Superfund.
  Now what happens at the typical Superfund site? I exaggerate almost 
none here, Mr. President. You have a release of some kind of hazardous 
substance discovered. The presence of this substance in the environment 
may or may not be harmful. Before that is even determined, practically 
every small business in the community that has ever had any contact 
with the site at all gets a letter.
  The letter basically says, ``We think you are liable. Prove to us 
that you are not.'' So immediately, you have all of the small 
businesses and some big businesses, too, immediately put into the 
position of being in a group of defendants having to try to prove that 
they are not liable for something that frequently occurred a long time 
ago without knowledge on their part.
  The costs to small business are very high. And it costs more than 
just money. The cost in time, in terror, literally, in toil and 
frustration in dealing with the alleged Superfund liability is one of 
the most gross aberrations in our legal system that we have on the 
books today, which is one of the reasons why there has been a lot of 
discussion about the reform of Superfund that hopefully we will get a 
little later.
  But every mom and pop operation that sent trash to a landfill that 
became a Superfund site knows exactly what I mean. The strict joint and 
several retroactive liability in this law is dragging down small 
business for the third time.
  And the recourse? Essentially none. Because unlike other laws and 
unlike S. 343 before us, Superfund expressly prohibits judicial review. 
Now, is that really what the opponents of this law applied to Superfund 
want? I do not think it is coincidence, as I said before, that the most 
oppressive and maligned and dysfunctional environmental program we have 
is also the one that prohibits redress in the courts. This is something 
on which we are all in agreement.
  So why can we not agree to provide judicial review to Superfund? Why 
is there opposition to having regulatory reform for Superfund in this 
bill? Even the administration has said it needs to go forward.
  In a memorandum prepared by the Council on Environmental Quality, the 
administration correctly pointed out the blatant inconsistencies 
regarding its posture regarding S. 343 and its position on regulatory 
reform and cleanup statutes.
  Here is what this memo states: That opposition to the intent of the 
cleanup provision in S. 343 is ``inconsistent with several 
administration policies.''
  Quoting again. ``The administration has repeatedly testified that 
cost-benefit analysis is a `useful tool' in making cleanup decisions.'' 
Again quoting. ``EPA, DOD, and DOE have made well-publicized 
commitments to more realistic risk analysis in cleanup activity,'' 
exactly what we are talking about in this bill.
  Executive Order 12866 requires cost-benefit analysis for regulations 
over $100 million. Many cleanups exceed this amount and the total cost 
of cleanup activities approaches or exceeds $400 billion. Quoting from 
this memorandum:

       It will be hard, politically and logically, to defend 
     application of the cost-benefit comparison to the former 
     decisions and not the latter.

  This is the administration speaking.
  Now, critics of this section argue that these reforms should be 
addressed in the Superfund reauthorization, and that is an appropriate 
place to deal with some of the reforms we are talking about.
  That is not to suggest, however, that in a bill dealing with cost-
benefit analysis and risk assessment and judicial review those matters 
should not be dealt with in this legislation.
  I know that Senator Smith, and others who have spoken here, members 
of the Environment and Public Works Committee, have been working very 
hard, but Superfund reauthorization may not be completed this year. I 
know the committee that I sit on, Energy and Natural Resources, 
understands the toll this program is taking on industrial facilities, 
small businesses and understands the need to get on with the process of 
reform of the process as opposed to the substance, which will, of 
course, be covered in the reauthorization.
  We are cutting our training and operation budgets in the military 
services and yet we keep getting higher price tags for installation 
cleanups. I cannot even begin to tell you what the runaway cleanup 
costs translate to in the Department of Energy.
  So, Mr. President, in conclusion, I believe that the Superfund 
cleanup provisions in this legislation are entirely consistent with 
existing law. They are consistent with planned administrative reforms 
that the Clinton administration is putting in place even now, as 
indicated by the memorandum I cited, and, perhaps most important, I 
think many of us would agree that Superfund is not a level playing 
field, that small business is being savaged by what amounts to 
institutionalized extortion from regulations.
  Federal and State regulators have ignored the risk and cost 
considerations throughout the process, in spite of the statutory 
requirement to consider those factors, and that is why this legislation 
is needed. The program is so badly broken and so desperately in need of 
major change, largely because the degree and the costs of cleanup have 
proceeded virtually unchecked for years. Simply having these provisions 
in this bill has brought about a new willingness on the part of 
regulators to be more realistic in the remedial action selection 
process.
  The Superfund provisions of S. 343 are consistent with the law, are a 
needed reform of the remedy selection process, and are an appropriate 
and necessary reform of one of the most expensive, intimidating and 
crushing regulatory programs for small business in the history of this 
country.
  Mr. BAUCUS. I wonder if the Senator will yield to me?
  Mr. KYL. I will be happy to yield. Of course.
  Mr. BAUCUS. I appreciate the Senator yielding. I heard the Senator 
say that in the Senator's opinion that the provisions of S. 343, 
particularly section 628, are consistent with or conform with basically 
the Superfund cost-benefit or risk assessment provisions now, and 
because they are consistent and basically conform, there should be no 
opposition. My question is, if they are consistent, conform, then what 
is the purpose of this provision? That is, the Superfund already does 
contain, as the Senator already said, cost-benefit and risk assessment 
provisions in determining sites and remedy selection and plans for 
cleanup. I am just curious, what is the need for this provision?
  Mr. KYL. Precisely the correct question to ask, and I appreciate it, 
because it applies not only to this issue but several others in other 
aspects of this legislation. We have Executive orders since the 
administration of President Ford, for example, which require cost-
benefit analysis, but almost all of us, I think, are in agreement that 
they have not worked. The procedures are not in place to force 
compliance and to provide for appropriate judicial review.
  So what I am saying is that while there is a requirement for cost-
benefit analysis and risk assessment in the existing law, it is not 
working, and the provisions of this bill will allow it to work in a way 
which gets to the other point that the Senator from Montana was 
raising, and that is that we have spent a lot of money and do not have 
a lot to show for it.
  Mr. BAUCUS. I understand. If I might ask----
  Mr. KYL. We should not delay any longer. I think this legislation 
will make the existing regulations workable for the first time.
  Mr. BAUCUS. Another question. I am just curious of the Senator's 
view, what is the precise language in section 628 that will speed up 
cleanups, that will address the problems small businesses face, that 
will reduce regulatory red tape, that addresses the joint and several 
and strict liability problem that bedevils so many parties involving 
cleanup sites? I wonder what is the precise language in this amendment 
which addresses the real problems--I agree they exist--that so many 
people face when dealing with Superfund. Can the 

[[Page S 9851]]
Senator point out some language in the amendment that he thinks will 
specifically help answer some of those problems?
  Mr. KYL. Sure. The entire section that establishes the procedure and 
the judicial review, which is missing from the Superfund legislation, 
will make it possible for individuals to insist that proper risk 
assessment and cost-benefit analysis is applied, and if it is not, a 
remedy will exist to require it to be applied, something which does not 
exist today.
  Mr. BAUCUS. I am just perplexed, in all candor, because the 
provisions of section 628 with respect to risk assessment are actually 
quite different from current Superfund law.
  Let me point out some differences. One, under this bill cleanups 
would generally be required only if the benefits justify the costs. 
That is a different standard than current law. And second, under this 
bill only the least-cost cleanup option would be selected. That is now 
not the case under Superfund.
  So they are not the same. Thus, S. 343, including section 628, would, 
by definition, require EPA, for example, and the States to stop what 
they are now doing and go back all over again from scratch and start 
the risk assessment and cost-benefit analysis, which would add more 
cost, more delay, and more red tape. And because Federal facility sites 
will cost more than $10 million to clean up, the clean up of each of 
these sites would be further delayed under the provisions of this bill.
  Why does the Senator believe that those provisions would not 
necessarily stop the present cleanup program and cause more red tape, 
more delay?
  Mr. KYL. First of all, the Senator is absolutely correct. The 
provisions of this bill are somewhat different from existing law with 
respect to the specific tests for cost-benefit analysis and risk 
assessment. That is the whole point.
  My point in pointing out that cost-benefit analysis and risk 
assessment are already part of Superfund was to illustrate two things: 
First, that the concept is not alien or inimical to Superfund. This is 
something that we have already said should be a part of our analysis 
for Superfund cleanups.
  Mr. BAUCUS. If I could just----
  Mr. KYL. If I could just go on.
  Mr. BAUCUS. Sure.
  Mr. KYL. And second, to note that while that is true, while it was 
our intention, while we wrote the exact words in the statute, it has 
not worked. And I think we agree on that.
  So, yes, the answer to the first question is there are different 
provisions--that is the whole point--to make it work because it has not 
worked in the past. The administration itself, CEQ, pointed out the 
fact that it would be pretty inconsistent to argue you should have 
cost-benefit analysis before, but now it is not appropriate.
  But the second question I think the Senator asks is the more 
difficult question and the one that is really important--and I respect 
the Senator for raising the issue--namely, we want to get on with the 
cleanup of these sites. Will this cause a delay or not?
  That is a very legitimate question. But I think, again, there are two 
answers. One, reasonable people can differ whether it will cause delay. 
We do not want it to cause delay, but we want it to do the right thing, 
and that is the other point here. We have to do the right thing. A lot 
of us believe we are spending millions and billions of dollars, really, 
in activities which are totally nonproductive where the risks are 
exceedingly low, where we ought not be wasting our money, and there are 
other sites that just beg to be cleaned up. Perhaps one of them is the 
example the Senator from Montana cited where we have to get on with it 
and prioritize those sites and get the job done where the cost clearly 
is outweighed by the benefits to be achieved. So that is the kind of 
analysis in which to engage.
  Instead, what we have is taxpayers paying lawyers and consultants 
billions of dollars to essentially waste time, dollars that are not 
only Government dollars but also small business dollars and other 
business dollars,
 and that is what we are trying to resolve with this legislation.

  Mr. BAUCUS addressed the Chair.
  Mr. KYL. I am happy to yield my time. I have concluded my remarks. If 
the Senators would like to take it at this point.
  The PRESIDING OFFICER. The Senator from Montana is recognized.
  Mr. BAUCUS. Mr. President, I appreciate the comments of the Senator 
from Arizona. With all due respect, they are really not on target. That 
is for this reason. We all agree that Superfund has terrific problems. 
But the problems that it has are not solved by this amendment. This 
amendment does not even address--does not even begin to address--the 
problems of the Superfund. In some sense, they are irrelevant to the 
problems facing Superfund. I will explain that.
  One of the main problems of Superfund today is joint and several and 
strict liability. This amendment has nothing to do with that, despite 
what the Senator from Arizona would like us to believe. Under joint and 
several and strict liability standards today, all parties are subject 
to the same joint and several and strict liability standard. And what 
happens? Some company--maybe the primary perpetrator that caused most 
of the toxic waste and hazardous waste at a site and other companies 
may be partners, or another company may have bought the site later, or 
a company may have owned the site earlier. A bank might be involved. A 
bank might have made a certain loan to one of the parties. Under the 
current law, they are all lumped in together. They are all jointly and 
severally liable and subject to strict liability. That is the current 
law.
  Here is what happens. Everybody sues everybody else claiming that he 
is the principal problem--not me but him. Well, everybody that is 
subject to liability, of course, is jointly and severally liable. That 
is why there are a lot of lawsuits today. It is the standard which 
creates the lawsuits. All of the people that are involved are suing 
each other.
  This amendment has nothing to do with that--nothing to do with that. 
So to stand up here on the floor of the Senate and say this amendment, 
section 628, is going to solve the problems of the red tape and delay, 
is a nonstatement, it is not accurate. It is not accurate because the 
problems facing people that cause all of the problems of the Superfund 
are caused by the underlying statute, substantive law not addressed by 
this amendment.
  Here is another example. Let us take a small businessman, somebody 
who has fewer than 50 barrels of hazardous waste at a site, who is a de 
minimis contributor. Under the provisions of the Superfund reform which 
we tried to enact last year, small businesses would be either exempt if 
they are particularly small; or if they are somewhat small, they would 
be entitled to a very expeditious standard and their liability limited 
to their ability to pay. That is a problem that the Environment and 
Public Works Committee tried to solve last year. But section 628 of 
this bill has nothing whatsoever to do with these real problems--
nothing.
  All section 628 says is cost-benefit analysis and risk assessment 
must be prepared. It has nothing to do with the problems of small 
business, Mr. President--nothing. Last year, we tried to enact 
Superfund reform--and as the Senator from New Jersey a few minutes ago 
very ably stated, it was stopped. We came up with a provision that 
eliminated joint and several liability to those who settled their 
liability through a new voluntary allocation system and not through 
court. Under this new allocation system companies would have an 
allocator decide which company is proportionately responsible for which 
portion of the waste. And if the company agrees and settles, they could 
not be sued; they would be immune from a lawsuit. Good idea. Everybody 
thought it was a good idea. Big business loved it. Small business was 
ecstatic. Environmentalists thought it was great. All the groups came 
together and agreed that this is a good, major reform to the Superfund.
  There are lots of other reforms in Superfund that we tried to pass 
last year. Some just did not want it passed. It was a disservice to the 
country. So here we are all over again trying to reform Superfund. This 
amendment has nothing to do with any of that. Nothing. N-o-t-h-i-n-g. 
The way to solve Superfund, Mr. President, frankly, is not to pass this 
amendment.
  What does this amendment do? It says you take the current lousy, 
botched up, unworkable Superfund program and add to all of the 
problems--more problems. It says start over again 

[[Page S 9852]]
and add a new kind of risk assessment and cost-benefit analysis. That 
is what this amendment does. It says, take the current lousy law and 
delay it further, add more redtape, start all over again. It means 
fewer cleanups. There are lots of sites in this country, Mr. President, 
where cleanups are finally agreed to and are in progress. It has taken 
10, 12, 15 years in some cases. This amendment says go back and start 
over again. That is exactly what it does, despite what anybody else 
says.
  So the answer, I think--and I have given a lot of thoughtful 
consideration to this, not rhetoric or a lot of stuff, not playing to 
the cameras--a thoughtful solution to this, frankly, is to delete this 
provision from the bill. It is not going to solve the Superfund 
problems. Somebody might like to say that it does for the people back 
home. In fact, it makes it worse.
  Rather, let us solve this the only way these problems can be solved; 
that is, to lower the rhetoric, quit the demagoguery, sit down and work 
with all of the people involved. You roll up your sleeves and cross the 
t's and dot the i's and find a solution, which is what happened over a 
year ago. Many outside groups who know the subject came together, 
worked hard, and reached an agreement. Most of the insurance industry 
also agreed. Some of the insurance industry did not agree, but most 
did.
  Let me read some of the supporters of it: Aetna Life Insurance, 
Allied Signal, American Automobile Manufacturers--this list goes on and 
on, and I will not bore the Senate. I am glancing here, and these are 
big, well-recognized organizations and companies. There must be over 
100 on this list.
  One of the greatest disservices this Congress has performed, in my 
judgment, in the last several years is the failure to pass Superfund 
legislation a year ago because it was a solid reform that would have 
helped people, provided a public service, which is what we are all 
elected to do. This amendment in this bill, section 628, not only does 
not do that, it makes a bad problem worse.
  I just ask every Senator and every staff person listening to forget 
the rhetoric, read the provisions of this bill, section 628, read 
Superfund, and just think. All you have to do is think. If you think, 
you are going to reach, I submit, roughly the same conclusion and 
therefore realize that, maybe we should not be including Superfund in 
this regulatory reform bill after all. And if we are going to do right 
by our people back home, let us take it out and reform Superfund in the 
right way, through the committee process, something along the lines 
that we enacted a year ago.
  Mr. JOHNSTON. Mr. President, I yield to no one in this body on my 
enthusiasm for risk assessment. It was I who first proposed, wrote, and 
passed twice a risk assessment provision, which did not pass the House, 
of course, and so we are here today working on this legislation.
  I believe the concept of risk assessment is one of the most important 
things we can ever do for this Government. It will save, I believe, 
hundreds of billions of dollars. It will relieve taxpayers and citizens 
of this country of huge and unnecessary burdens and will allow the 
means that we have, the dollars that we have in this country, to be 
spent on environmental and health and safety matters, to be applied to 
environment and safety and health matters and not to waste, as it is 
today.
  Now, having said that, Mr. President, I rise in enthusiastic and very 
strong support of this amendment. The reason is that this amendment and 
the application of this procedure to Superfund, as well as to defense 
cleanups, as well as to cleanups under the Solid Waste Disposal Act, do 
not fit.
  They do not fit, Mr. President. We have been talking about Superfund, 
and I concur with comments of my colleague from Montana, that that 
needs to go through that committee. That committee voted out and passed 
that bill last year. We need to do that again this year.
  Mr. President, we have not spoken about cleanup at defense plants. 
Cleanup at defense plants is an activity on which we are presently 
spending over $6 billion a year. It is the largest cleanup activity of 
the Federal Government.
  Now, Mr. President, we commissioned a report on the Hanford site, 
which is the most difficult site and the most expensive site of the 
DOE. They came back with a horror story about how money is being 
squandered and nothing is being done. I will not go into all the 
reasons, but the principal reasons are that the legal matrix, the legal 
framework that we in the Congress have created for Hanford as well as 
other DOE sites, does not work.
  We not only have the Superfund, which is applicable to Hanford, we 
have RCRA, which pertains to chemical wastes. We have a tripartite 
agreement setting standards, dates, and requirements--dates that cannot 
be met, standards that have not been passed, and using technologies 
that do not exist.
  Moreover, Mr. President, we have superimposed upon that an act we 
call the Federal Facilities Act, under which the Federal Government can 
be sued and the Assistant Secretary of Energy can be put in jail--
something he is very concerned about--if they do not meet standards and 
dates that are impossible to meet because there is no place, for 
example, to store the waste, because the waste isolation pilot plant is 
not ready, and that is the only place available for some of these mixed 
wastes.
  Mr. President, it is probably only the Congress of the United States 
which could have designed a legal framework as confusing, as 
contradictory, as difficult, as unworkable, as unbelievable as we have 
created for our defense plants' cleanups.
  Now, Mr. President, the Senator from Alaska [Mr. Murkowski] and I 
have proposed legislation for Hanford. We have proposed to deal not 
only with CERCLA but RCRA, the Federal Facilities Act, the tripartite 
agreement. We proposed to reconstruct that and do it over again.
  It is not that we do not want to use risk assessment. Risk assessment 
is central to the issue. It is a risk assessment procedure that would 
be vastly different from that which we have constructed in this bill.
  This bill constructs risk assessment principally for Federal 
rulemaking, EPA-type rules. It is workable, a good procedure, which, 
Mr. President, I am very proud of the handiwork in the Dole-Johnston 
bill. I think it is workable. I think it will improve environment. I 
think it will improve health. It will save lots of money. It is a very, 
very good bill.
  But it does not fit for defense plants' cleanups. We have to deal 
with those tripartite agreements. They have, Mr. President, as I am 
sure all my colleagues know, a problem at these defense plants, what we 
call mixed waste--mixed chemical waste and mixed nuclear waste or 
radioactive waste. One set of regulations for radio-active waste, one 
set of regulations for chemical waste, and no technology yet to deal 
with the mixed wastes. Some promising research is being done, and no 
place to put the waste.
  Literally, our Assistant Secretary of Energy, unless we change the 
law, can go to jail for not doing what is impossible to accomplish. 
Absolutely that is true, Mr. President. The waste isolation pilot plant 
is not ready.
  By the way, the reason it is not ready is also because we do not have 
a well-working risk assessment bill. If we did, they would have done 
the risk assessment and would not be doing some of the silly things 
they are doing down in Carlsbad, NM, on delay and unnecessary expense 
in the plan.
  Be that as it may, WIPP is not ready and we have no place to put the 
waste and we do not have the technology. It is a grand and glorious 
mess.
  What we propose if we can pass our legislation, Mr. President, is 
create this paradigm, this legal matrix, limit it to Hanford, and then 
we propose to use that as the model for other defense plants. We will 
have to modify it--things are a little bit different, at Rocky Flats in 
Colorado, et cetera. Each one of these sites has their own 
peculiarities. Some have a lot of plutonium, some have a lot of mixed 
waste. Hanford has almost every imaginable kind of waste.
  Each of those deserves the time and attention, in the case of defense 
plants, of the Energy Committee; in the case of CERCLA, of the 
Environment and Public Works Committee. They are different problems 
from those we seek to serve in the Dole-Johnston bill presently 
pending.
  Mr. President, in including Superfund and environmental cleanup 

[[Page S 9853]]
  in the original Dole-Johnston amendment, we knew at the time that we 
included it that it would be subject to an amendment and that it would 
probably come out. I say ``we'' knew that; I do not want to speak for 
anybody else but myself. Let me say that I and my staff knew it and we 
discussed it, and I think the feeling was at that time that it should 
be included in the draft in order, first, to draw attention to the 
issue; second, to give some leverage in assuring that we would deal 
with the question of Superfund and of defense cleanup.
  Indeed, we have had Senator Baucus, the ranking member, come and say 
that he is anxious, willing, and able and can virtually promise that 
that committee will deal with the issue.
  I think there are Members who are so anxious for risk assessment to 
be made part of CERCLA that they want to get those assurances. I think 
now we have heard those assurances on the floor of the Senate.
  I hope, therefore, with those assurances, that the committee such as 
Energy and Natural Resources, with respect to defense plants, can 
proceed and do our business and enact the legislation that Senator 
Murkowski and I presently have pending. I hope that the Environment and 
Public Works Committee will expeditiously report out that bill again 
which we passed last year, and that we can get on and pass this risk-
assessment cost-benefit legislation presently pending.
  Mr. President, I am getting more hopeful and more confident as the 
hours pass, that the spirit in this Chamber is such that it will allow 
the Senate to pass this bill with a strong bipartisan effort. I think 
acceptance of this amendment will be a strong indication of that. I 
hope we can vote soon.
  Mr. CAMPBELL. Mr. President, I rise in strong support of the 
amendment by the Senator from Montana.
  Count me in among those who believe that there are serious problems 
with the superfund program and the Energy Department cleanup program. 
It is plain to me that we are spending a lot more money, and a lot more 
time, on lawyers and bureaucracy than we are on getting these cleanups 
underway.
  I agree that the superfund program is not working, and I think we 
need to make major changes to make it work better. But not at the price 
of further delay and further bureaucracy that will delay these cleanups 
even longer.
  The Rocky Mountain Arsenal outside of Denver was used for years as a 
production facility for chemical munitions by the Defense Department. 
Since the 1950's it was used to produce pesticides. The defense 
department and the Shell Oil Co. left a pretty tough mess.
  In 1984 the site was listed as a national superfund site, and it is 
now more than a decade that the site has been under study, and 
significant cleanup has already occurred to resolve immediate threats 
to human health and the environment. Just last month a conceptual 
agreement was reached on a final cleanup plan at the arsenal. That 
agreement must go through the public comment process and a final 
decision should be made by early next year.
  If this amendment is not accepted, the door will be open to anyone to 
file a new challenge to this long, tortuously negotiated accord based 
on the new rights created under this bill to seek additional cost 
benefit and risk analysis studies.
  Some Senators may be familiar with the Summitville mine disaster; 
since that mining company declared bankruptcy and left my State with a 
massive cleanup problem, we've seen decisions made and cleanup projects 
begun. Again, I don't want this bill to be the cause of any further 
delay in getting this critical work underway.
  I have other, tough cleanup problems in my State, at Leadville, at 
Clear Creek, and many other sites. I want this program to work better, 
and I'll be supporting major changes in the program when we consider 
reauthorization later this year.
  As any of my colleagues who are involved with superfund know, that 
process takes too long and our constituents get very frustrated when 
they see a lot of planning and not much actual cleanup. I don't want to 
extend that process even a day longer than necessary, and so I urge my 
colleagues to support the Baucus amendment.
  Mr. THOMAS. Mr. President, I ask unanimous consent to proceed in 
morning business for 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Wyoming is recognized.
  Mr. THOMAS. I thank the Chair.
  (The remarks of Mr. Thomas pertaining to the introduction of S. 1031 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, we had a lot of discussion in the last 3 
days on the need for regulatory reform. We have had a lot of horror 
stories presented about undue regulation and what it has done to small 
business people and farmers of the United States. That impacts 
negatively on everybody as it inhibits the creation of jobs, as it 
brings undue costs to the operation of a business and, in many 
instances, with harm to the public if nothing is changed.
  I have taken the floor several times to discuss some of these 
problems with existing rules and regulations, or the implementation of 
those rules and regulations. I want to address another issue like I did 
yesterday on the subject of wetlands.
  Before I do, I want to visit a little about the general atmosphere of 
the debate here on this regulatory reform bill in the U.S. Senate. We 
are led to believe that all of our concern about public health and 
safety and the environmental policies are going to be thrown out the 
window with the adoption of a regulatory reform bill. It is not, 
because our bill does not change any of the substantive laws that are 
on the books in each one of those areas.
  If it did, that is what we would call, in this body, a supermandate, 
one law overriding others. In fact, we recently adopted an amendment 
just to make it more clear that there is nothing in this legislation 
that is a supermandate. And we have also been hearing a lot of other 
concern expressed, mostly on the Democratic side of the aisle, about 
bad aspects of this legislation.
  I would plead with the Democratic Members of this body who have been 
fighting this bill so hard, that they should want Government to work 
well. They should want Government to work efficiently. They should want 
Government to work in a cost-effective way. They should want Government 
to serve people rather than people serving the Government.
  Another way to say that is, they should want Government to be a 
servant of the people rather than a master of the people.
  I know Democratic Members of this body believe that all Government is 
good. And I know that they believe that basically Government means well 
and does well, and they are willing to give the benefit to big 
Government, that when there is some doubt about whether Government is 
really going to do well, that we ought to err on the side of Government 
doing it.
 That is a legitimate political philosophy that I find no fault with. I 
do not accept it, but it is a legitimate political philosophy that we 
can have in our system of government.

  What does that have to do with the bill that is before us and my 
pleading with the Democratic Members of this body? There is nothing 
wrong with believing in big Government. There is nothing wrong in 
believing, if you think it is best for the country, in a regulatory 
state. There may not be anything wrong with believing that regulators 
ought to dominate more so than the free market system determinations 
made in our economy.
  But the very least, if you believe all those things, you should make 
sure that the regulatory state, that the big Government you believe in, 
will actually work well and effectively deliver the services that you 
want delivered. And the fact of the matter is this big Government, this 
big regulatory state that you like so well not only does not deliver 
well, but the rulemaking process is much more costly than it need be. 
It impinges upon the marketplace much more than need be to protect the 
public health and safety and the environment. And it just does not work 
very well because it never delivers a decision. You know it is just 
awfully difficult to get a decision out of the Government, and 
particularly when 

[[Page S 9854]]
you have two Government agencies fighting each other.
  The very least--I plead with you--if you believe in the big 
Government that you practice, that you ought to be for making it 
efficient and effective. And your big Government and your big 
regulatory state, we are saying on this side of the aisle, does not 
work very well, and we see S. 343 as a process of making sure that it 
is cost effective because of the cost-benefit analysis, that it has a 
sound basis because we require scientific determinations and risk 
assessment, and that it should not be a law unto itself. We protect 
against that in this legislation through congressional review of 
regulatory action and through judicial review of regulatory action.
  I hope during this debate--and this will be the fourth time I have 
been involved in an example just in my State--my State is only 1.5 
percent of the people in this country, but some horror stories have 
taken place in my State. Remember the first day I spoke about EPA 
enforcing one of its rules on toxic waste. They had a paid informant 
that was a disgruntled employee of a local gravel company, the Higman 
Co., in a little town of Akron in northwest Iowa. The information was 
not correct, but they decided to invade his place of business. One 
quiet morning they came in with their shotguns pumped, their 
bulletproof vests on, 40 Federal and local law enforcement people to 
find that toxic waste and to arrest the manager.
  He tried to find out what was the big deal. They told him to shut up. 
They stuck the gun in the face of his accountant. She is a nervous 
wreck yet as a result of that action. It cost him $200,000 of lost 
business and legal fees to defend himself on a criminal charge that he 
was not found guilty on because there was not any toxic waste buried in 
his gravel pit because this process of making a determination was bad.
  I told you the next day about how there is an EPA regulation on the 
books under the Clean Air Act affecting the grain elevators in the 
rural communities where farmers send their grain for processing and for 
sale. We have 700 of these grain elevators in my State. They are 
charged with proving to the Government that they do not pollute. The 
initial determination of that is to fill out a 280-page document for 
EPA, which some of these elevators are paying $25,000 to $40,000 of 
consulting fees to help get filled out properly. Then once they are 
filled out properly and go to the EPA, only 1 percent of the 700 are 
going to come over the threshold determined by EPA that you are a 
polluting business.
  But what really is strange about that rule is this: EPA assumes that 
you are going to be polluting 365 days a year, 24 hours a day, when the 
problem that EPA is trying to get at is a seasonal problem in which the 
elevators are operating for about 30 to 45 days out of a year in which 
there might not be any problem whatsoever.
  They have each one of these little grain elevators supposedly in 
business processing grain every day of the year, every hour of the day. 
Any one of these, under that assumption, would have to have the entire 
corn crop of the entire United States, 10.03 billion bushels, processed 
through any one of these little businesses.
  Then I told you next about the farmer in Mahaska County, IA, that 
bought a farm in 1988. And in 1989 he got permission from the Soil 
Conservation Service for clearing some trees and improving the drainage 
system. He had the approval of a Government agency of everything he 
did, even the approval of the Iowa Department of Natural Resources.
  Within just a few months the Corps of Engineers threatened to fine 
him $25,000 a day because he was doing something without one of their 
permits saying it was a wetland when it was not a wetland. All you have 
to do to prove that is to drill little holes in the ground and find out 
how close the water is to the surface. And it was not 4 to 5 feet. In 
order to be a wetland you have to have 7 days of continuous water on 
the land. Yet, they wanted to fine him $25,000 a day for what another 
Government agency said he could do. Then later on that first Government 
agency said he could do it. They backed off and said they had made a 
mistake. Then he appeals it through the local, the State, and the 
national office. Here it is 1995, and he still does not have a 
determination of what he can do with that land.
  As I said to the big Government Democrats that are opposing our bill, 
it seems to me that, if you want to believe in big Government, OK. But 
at least Government ought to be able to give a constituent some sort of 
an answer. If you say they have done something wrong, they ought to be 
able to get an answer. You ought to be able to have the Government 
agencies agree among themselves on what the policy is.
  This is a perfect example of Government out of control. This young 
Mahaska County farmer still does not know where he stands with this 
land. He could potentially pay a lot of fees. In the meantime, he has 
paid a lot of money to try to get what he thought he had the right of 
in the first place by getting a Government agency to say what he can do 
and not do to some of his land.
  There is no reason why we need four different Government agencies' 
definition of what a wetland is. How do you expect a poor farmer to 
understand what a wetland is, or even a rich farmer understand what a 
wetland is if four Government agencies do not know what a wetland is?
  In fact, in the farmer's case I just told you about, the 
determination of what was a wetland or not a wetland was based on a 
1989 Corps of Engineers manual that is not even being used anymore.
  (Mr. GRAMS assumed the chair).
  Mr. GRASSLEY. Mr. President, in my opinion no other area of 
regulation needs reform as desperately as wetlands regulation. No less 
than four Federal agencies claim jurisdiction over agricultural 
wetlands and these agencies often use conflicting manuals and 
procedures in delineating and regulating the use of wetlands.
  I have addressed this body several times in the past regarding the 
complex, confusing, illogical, and downright burdensome way that the 
Federal Government regulates wetlands in agricultural areas.
  Most of my colleagues must agree with this assessment because in 
March, the Senate passed by unanimous consent, a moratorium on new 
wetland delineations. Subsequently, the administration agreed with the 
Senate and imposed its own moratorium. This will allow Congress the 
opportunity to reform existing wetlands policy.
  Even if Congress does not act, however, S. 343 will force agencies to 
recognize common sense and sound science when promulgating wetland 
regulations. And when agencies begin to act in a rational manner, maybe 
we can avoid situations like the one in Iowa that I am about to 
describe.
  Mr. President, as I travel across my State and talk to farmers and 
other property owners, I hear many stories of senseless regulations and 
bureaucratic nightmares. But the problems of a farmer in Greene County, 
IA, may be the most vivid example of the need for common sense in 
rulemaking.
  This particular farm in Greene County has been continuously cropped 
for almost 90 years. The original drainage system was installed in 
1906.
  As this chart illustrates, from 1906 until 1992, the land was framed 
and no wetland existed on this part of the farm. In 1992 this all 
changed.
  During the summer of 1992, the local drainage district decided to 
replace the original system with an open ditch. This was all carried 
out in consultation with the Soil Conservation Service.
  Prior to the construction of the ditch, the owner of the farm was 
informed by the SCS that the ditch would result in the creation of a 
small wetland, about 150 feet on each side of the ditch.
  After the ditch was installed, however, the SCS district office 
changed its mind and classified 14.2 acres as ``converted wetland.''
  Now once a farmer has part of his farm declared a wetland, it can no 
longer be cropped. So in effect, the Government is depriving this 
farmer of the economic use of his own property, even though the farmer 
did not create the wetland, and even though the land had been farmland, 
not a wetland, for the past 90 years.
  At that point, the only recourse available to the farmer was through 

[[Page S 9855]]
  the appeals process. In this case, however, the appeals process only 
made the situation much worse.
  Before the first appeal, the SCS had already changed its initial 
wetlands classification of 14.2 acres to 10.8 acres. The SCS area 
office confirmed this designation during the first appeal. At the 
second appeal, the State SCS office decided that the wetland was 
actually 17 acres. And at the final appeal level, at the SCS national 
office, the wetland was determined to be 28.2 acres.
  Mr. President, as you can see on this chart, this farm was cropped 
from 86 years. But then, through no fault of the farmer, the SCS 
decided there was a wetland on this land. And this wetland apparently 
was expanding rapidly--from 10.8 acres to over 28 acres in less than 2 
years
  Keep in mind that nothing had happened during this time that actually 
changed the size of the wetland. The farmer did not farm the land. The 
drainage system was not expanded. And no additional water was present 
in the area.
  The only difference was the way each level of the agency interpreted 
the wetland regulations. And undoubtedly, the lack of common sense 
contained in the underlying regulations caused this confusion within 
the agency.
  All of this sounds ridiculous until you consider that a real price is 
paid by our citizens who are subject to these regulations. The farmer 
in Greene County, IA will lose thousands of dollars in future income 
because the bureaucracy decided that he could not farm his land. Even 
though this land had been farmed continuously for the past 90 years.
  It is cases such as this that undermine the faith that Americans have 
in their Government. It is cases such as this that motivate the 
electorate to throw out a party that has been in control of Congress 
for the past 40 years. And if S. 343 will help just one person like the 
farmer in Greene County, IA, then the Senate should pass this bill and 
the President should sign it into law.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Mr. President, I am about to propound a unanimous-consent 
request that I think will get us to the Boxer amendment. I ask 
unanimous consent that, following the remarks of myself and Senator 
Murray--I will not be very long--the Johnston amendment be laid aside 
and that Senator Boxer be recognized to offer her amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. JOHNSTON. Reserving the right to object. And I appreciate my 
friend from Utah working on this issue of the environmental cleanup, 
and I hope we will successfully do it. I note that we have been on the 
amendment for about 3 hours and that it is not a delay coming from this 
side. I simply mention that to say that I hope we will be able to get 
time agreements from now on and be able to move expeditiously. We made 
great progress today so far. And we will continue.
  Mr. HATCH. I appreciate that.
  Mr. GLENN. Reserving the right to object. I wonder if it will be 
possible to get a time agreement. Will the Senator give us any idea how 
much time it will take? We are going to try to--I will tell everybody I 
would like to get time agreements on everything that comes out from now 
on.
  Mr. HATCH. I do not think Senator Boxer----
  Mr. GLENN. We have to wait on the time agreement. She can go ahead 
and proceed. I will not object to the UC.
  Mr. HATCH. Can I reverse the UC, because I understand Senator Murray 
is only going to take 3 or 4 minutes.
  Mr. GLENN. Senator Boxer has to come to the floor.
  Mr. HATCH. Senator Murray is going to speak on Superfund. Why do I 
not reverse that, have her speak first, I will speak second, and then 
Senator Boxer can offer her amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. MURRAY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Mr. President, I thank the Senator from Utah. I simply 
rise today to support the Johnston-Baucus amendment that strips the 
Superfund provisions from this bill. It touches on one of the most 
pressing issues facing my home State of Washington: the cleanup of the 
tons of nuclear waste that is contained at the Hanford Reservation.
  The bill before us specifically targets Superfund sites and subjects 
activities costing more than $10 million to immediate cost-benefit 
analysis and risk assessment. This assessment will be required even 
where agreements have been reached and cleanup has already begun. All 
cleanup would come to a screeching halt so that the Government could 
analyze the benefits of cleaning up toxic waste.
  Hanford cleanup has come under intense and justified scrutiny by this 
Congress. Its critics have railed that it has cost billions of dollars 
and has resulted only in reams of documents, not any actual cleanup. 
This bill would only exacerbate those problems. Cleanup that is finally 
getting underway would stop while the Department of Energy conducted 
potentially dozens of more analyses on the benefits of cleaning up the 
nuclear waste that today is seeping toward the Columbia River.
  Mr. President, there is a lot we do not know about the risks of 
radioactive waste. We do not know how to clean it up, where to store 
it, or how fast it migrates, or any number of things. Because so much 
is unknown, a detailed generic cost-benefit analysis and risk-
assessment process would be endless and very costly.
  Let me add, however, that while I do not support the cumbersome 
approach taken in the current bill, I do believe the Hanford site and 
other Superfund sites will benefit from a cost-benefit analysis. In 
fact, I will encourage us to move toward a bill that incorporates risk 
assessment and cost-benefit analysis into the decisionmaking structure 
at Hanford. We should try to develop a bill that requires consideration 
of costs but does not impose inefficiencies or unnecessary taxpayer-
funded analytical costs that result only in reports, but we should not 
do it on this bill.
  Finally, I would like to remind this body that the Department of 
Energy is facing tremendous budget cuts and possibly elimination. 
Burdening it with this review process while at the same time demanding 
that it improve the pace of its cleanup and reduce costs is a recipe 
for disaster in my home State.
  This bill is not the place to make the reforms most of us believe are 
necessary to improve Superfund. The place to make those changes is in 
reauthorization of CERCLA before the authorizing committee with its 
indepth knowledge of this important law.
  For these reasons, I urge my colleagues to support the Johnston-
Baucus amendment to strip the Superfund provisions from this bill. Both 
current and future citizens who live near our Nation's nuclear waste 
facilities will thank you.
  I yield the floor.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah.

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