[Congressional Record Volume 143, Number 85 (Wednesday, June 18, 1997)]
[Senate]
[Pages S5918-S5921]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   THE WAYNE, NJ INTERIM STORAGE SITE

  Mr. LAUTENBERG. Mr. President, I rise to express my objection to a 
provision in the defense authorization bill that is expected to shortly 
come before the full Senate.
  The reason that I take this time now to bring this to the Senate is 
that it is a matter of great urgency. This is the kind of thing that I 
think citizens throughout the country will automatically rebel against. 
This is kind of a shock treatment that every now and then happens here 
that ought to come to the attention of the American public because it 
is such a flagrant example of the abuse of power, and the power 
belonging to a corporation with a good friend inside this body.
  The provision I am objecting to is one of the most flagrant examples 
of special interest corporate subsidy that I have ever witnessed in my 
roughly 15 years in the U.S. Senate. This provision is section 3138 of 
the defense bill, will have the effect of exempting a company called 
W.R. Grace--a company that has contributed to a hazardous wastesite in 
my State of New Jersey--from any further liability at this site.
  Mr. President, this provision was written to get W.R. Grace off the 
hook--out of any responsibility for pollution that they created, out of 
the obligation to pay for it, thus passing the buck to the American 
public. This company contributed to this hazardous wastesite in the 
State of New Jersey, and now the bill includes this reference that 
excuses them from any further liability for pollution that they created 
at this site.
  The provision effectively grants a special exemption for this company 
from a law known as the Superfund law, the law which embodies the 
concepts that the polluter should pay for the pollution and 
contamination that they created. It is fundamental. The

[[Page S5919]]

Superfund law, which I am proud to have helped write, provides the 
Government with the tools to go after the polluters who are found to be 
responsible for the waste.
  Mr. President, this provision was inserted in the dark of night 
without any consultation with this Senator who has worked for so many 
years to get this site cleaned up; and who has been chairman of the 
subcommittee on Superfund in the Environment and Public Works Committee 
and is now the ranking member. Though I am not involved directly with 
the Armed Services Committee, the fact of the matter is that everyone 
who is here knows that I have been very much involved in helping to 
create the Superfund law and making sure that we clean up contamination 
in our country. But here, even the professional staff, the Democratic 
staff of the committee, was unaware of this section's insertion and 
were not given any opportunity to review the provision.
  This provision is a sneak attack on the environment, on the 
taxpayers, and on the legal process. This provision says to the 
taxpayer, ``Too bad for you, taxpayer. We will let a corporate polluter 
off the hook because this polluter has some special friends in the U.S. 
Senate. Oh, and by the way, taxpayer, this dump has to be cleaned up. 
Somebody has to pay for it. So I guess it is going to be you. The most 
it can cost you, taxpayers, is $120 million. But it saves Grace that 
money.

  So that should make us all feel good, I guess.
  I want to explain a little bit about the Wayne Superfund site.
  From 1948 to 1971, thorium, a highly radioactive material, and other 
materials, were extracted at the site that was later owned by W.R. 
Grace & Co. in Wayne, NJ. The process of mining thorium resulted in 
contamination with radioactivity of numerous buildings. When the 
contamination was discovered these buildings were torn down. The 
resulting waste material was placed in an enormous dump site in Wayne 
Township, NJ. The Environmental Protection Agency placed this dump site 
on the Superfund National Priority List in 1984. They said it was one 
of the worst contaminated sites in the country because this site would 
potentially threaten the drinking water supply for 51,000 New Jersey 
residents. The Department of Energy, which oversees the cleanup of this 
fund under a program that they call FUSRAP, the Formerly Utilized Sites 
Remedial Action Program, has spent over $50 million so far cleaning up 
this site. The Department of Energy says that the ultimate cleanup may 
cost as much as $120 million.
  In 1984, W.R. Grace turned over the property and $800,000 to the 
Federal Government. That year, W.R. Grace signed a legally binding 
agreement with the Federal Government which provided explicit 
assurances that the Government could still pursue the company under any 
law, including the Superfund law. So when the Federal Government put 
down the $800,000 deposit, that didn't permit them to escape any 
further liability. W.R. Grace signed the agreement to confirm that.
  As the Department of Energy began to clean up the site and to further 
study the extent of contamination, it soon realized that the cleanup 
costs were far beyond what they originally believed. In 1996, the 
Justice Department, acting on behalf of the Department of Energy, began 
serious discussions with W.R. Grace to determine the extent to which 
the company might be willing to contribute additional costs to pay for 
this massive cleanup.
  I was assured that these discussions were proceeding in good faith 
and that progress was being made. But then I found out about this 
outrageous breach of the legal process to which I believe the company 
would be seriously committed either by negotiations or tested in the 
courts of our country.
  Mr. President, the residents of Wayne Township are outraged. They 
feel betrayed by the democratic process, and I share their outrage and 
disappointment. I am going to be introducing an amendment to remove 
this provision from the bill and to defend the concept embodied in our 
law that says that you create the mess, you clean it up; you can't walk 
away, or, in this case, sneak away from your responsibilities.
  Mr. President, I ask unanimous consent to have printed in the Record 
copies of letters from the Department of Energy written in 1995 which 
show DOE's efforts to get W.R. Grace to come to the table.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                         Department of Energy,

                                Washington, DC, November 20, 1995.
     Mr. Jeffrey M. Posner
     Corporate Risk Management Department, W.R. Grace and Company, 
         Boca Raton, Florida.
       Dear Mr. Posner: I am writing to determine the willingness 
     of W.R. Grace and Company to contribute to the continued 
     cleanup of the former Grace property located at 858 Black Oak 
     Ridge Road, in Wayne, New Jersey. From 1957 to 1971, the 
     facility was operated by the Davison Chemical Division of 
     W.R. Grace. Grace continued to own the site until September 
     1984, when the U.S. Department of Energy acquired the 
     property to facilitate a decontamination research and 
     development project. Congress directed the Department's 
     involvement in this project through the Conference Report 
     accompanying the Energy and Water Development Appropriation 
     Act for Fiscal Year 1984.
       The Office of Environmental Management of the U.S. 
     Department of Energy is currently conducting the cleanup of 
     the site, also known as the Wayne Interim Storage Site, under 
     the Comprehensive Environmental Response, Compensation and 
     Liability Act (CERCLA). The total cost of the cleanup may 
     exceed $100 million, depending on the final remedy ultimately 
     approved by the Environmental Protection Agency
       As you know, the owner of a site at the time of disposal of 
     hazardous substances at the site is responsible under CERCLA 
     for remedial action costs. Thus, Grace, a former owner of the 
     Wayne property, has a legal duty to pay for the site's 
     cleanup. In addition, there has been continuing congressional 
     and local interest in pursuing CERCLA cost-recovery actions 
     against potentially responsible parties. Recently, the 
     Department has received specific requests from elected 
     officials, including Senator Lautenberg, Congressman Martini, 
     and Wayne Township's Mayor Waks, that the Department review 
     possible legal actions seeking appropriate cost recovery. We 
     expect congressional and public interest in this issue to 
     continue.
       We believe that it is in the best interest of the local 
     stakeholders and American taxpayers to discuss with your 
     company appropriate ways to avoid litigation and ensure that 
     resources are applied directly to the prompt cleanup of the 
     site rather than to courtroom activities.
       I will be calling you in the near future to discuss this 
     matter further. If you have any questions, feel free to 
     contact me at 202-586-6331 or have a member of your staff 
     contact Mr. Steven Miller, of the Department's Office of 
     General Counsel, at 202-586-6947.
           Sincerely,

                                            James M. Owendoff,

                                        Deputy Assistant Secretary
     for Environmental Restoration.
                                                                    ____



                                         Department of Energy,

                                Washington, DC, November 24, 1995.
     Hon. Frank R. Lautenberg,
     U.S. Senate, Washington, DC.
       Dear Senator Lautenberg: In my September 29, 1995, letter, 
     I advised you that the Department of Energy would look into 
     the matter of seeking cost recovery against potentially 
     responsible parties for cleanup of the Wayne, New Jersey, 
     site.
       After consulting with the Office of the General Counsel, my 
     office has initiated discussion with W.R. Grace and Company 
     to assess their willingness to contribute to the cleanup of 
     the Wayne site. If these discussions are successful, W.R. 
     Grace's cooperation could enable the Department to expedite 
     the overall cleanup schedule for the site.
       If possible, we would prefer to avoid time-consuming and 
     costly litigation so that available resources are focused on 
     cleaning up the site. If discussions with W.R. Grace are 
     unsuccessful, we will consider other options including 
     requesting the Department of Justice to initiate formal cost-
     recovery actions.
       We share your goal of pursuing opportunities to expedite 
     the cleanup activities at Wayne. As one example, the 
     Department began removal of the contaminated material in the 
     Wayne pile through an innovative total service contract with 
     Envirocare of Utah. We want to thank you for the enormous 
     support that you have provided over the years to bring this 
     project to fruition.
       If you have further questions, please contact me, or have a 
     member of your staff contact Anita Gonzales, Office of 
     Congressional and Intergovernmental Affairs, at (202) 586-
     7946.
           Sincerely,

                                            Thomas P. Grumbly,

                                           Assistant Secretary for
                                         Environmental Management.

  Mr. LAUTENBERG. Mr. President, it is a strange anomaly that the name 
of this company, W.R. Grace, is the name of--I am not sure whether it 
was the founder--but the name of someone who helped build this big 
company. It is also the name of someone who wrote a report that was 
officially called ``The Report of the Grace Commission'' in which they 
talked about how you reduce Government inefficiency, reduce

[[Page S5920]]

costs, and cut down the size of Government and get those bureaucrats 
off our backs--all of those words. But now this company said there is 
one way to resolve problems, and that is to hide behind a good friend's 
efforts, whoever that friend may be, and get it off the hook for 
possibly--$120 million.
  We can't find enough money around here at times to take care of 
essential programs. We are cutting back Government as much as we can. 
We are trying to arrive at a balanced budget in the year 2002. And we 
struggled here not too long ago to try to get disaster relief money 
into the hands of people whose homes were torn apart, whose families' 
histories wiped out, with many left penniless and nowhere to turn. We 
had a heck of a time getting those funds to those people.
  Here we have $120 million that this Government is liable to have to 
spend to clean up this site. And what do we do? We let the company duck 
its responsibilities.
  Well, Mr. President, I don't intend to threaten at all. But I will 
say this: If this section stays in the bill and lets W.R. Grace off the 
hook, and maybe some other companies, we will have to study it a little 
more thoroughly. I will stand here, and I will talk. I will read, I 
will lecture, and I will do anything I can to keep this from becoming 
law because it is an outright misuse of taxpayers' funds. I am not 
going to let that happen, Mr. President--not this Senator. And I am 
sure other Senators will agree with me.
  With that, I yield the floor. I thank you. I note the absence of a 
quorum.
  The PRESIDING OFFICER (Mr. Inhofe). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. INHOFE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Warner). Without objection, it is so 
ordered.
  Mr. INHOFE. Mr. President, I also ask unanimous consent that I be 
shown as an original cosponsor of S. 923.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Depot Maintenance

  Mr. INHOFE. Mr. President, I would like to just take a couple of 
minutes to respond to the best of my memory to some of the things that 
were stated by the senior Senator from Texas [Mr. Gramm].
  First of all, he mentioned that personality should not enter into 
this. I certainly hope that will be the case. Unfortunately, Mr. 
President, all too often in both bodies if we get wrapped up in things 
we honestly believe in, it becomes personal. I do not think this will 
be the case, certainly in the case of Senator Gramm. He is a man I have 
respected for many, many years even before I served in the other body 
or this body. In fact, I was one of the individuals who strongly 
supported him in his bid for President of the United States because I 
thought he was the best choice. And it was not an easy thing for me to 
do because, unfortunately, our majority leader in the Senate was 
running.
  However, I think some things need to be brought out and some things I 
have access to because of the fact that I serve on the Senate Armed 
Services Committee and chair the readiness subcommittee of the Senate 
Armed Services Committee.
  First of all, on this issue of the depot caucus we hear so much about 
in the other body, I hear some statements attributed to them that sound 
a little bit extreme from time to time, but I have to say also that 
that is a group of people with a genuine concern over how depot 
business should be handled.
  All too often we start thinking of parochial concerns, about what is 
the effect of a certain action going to be on the population of my 
State, and forget about the fact that there is a reason for a depot and 
there is a reason for core functions to be performed in a depot. All 
too long we have gone without a definition of core, and core, Mr. 
President, as you well know, is those functions that have to be 
performed to enable us to defend the lives of Americans.
  That is what it is all about. When you talk about the depot caucus 
over on the other side, I did some things in this bill, and, of course, 
the Chair is fully aware of it because he was there at the time, made 
some compromises that the so-called depot caucus found very offensive. 
I agreed to change the 60-40 formula to 50-50. Also, I did something 
else that not many people really are aware of because it gets a little 
bit technical but provided for allowing teaming to be done by a public 
depot. This is extremely significant and it shows that I of all people 
am not against private sector competition.
  The Senator from Texas [Mr Gramm] talked about this as one of the 
backbones of the philosophy of the Republican Party and the 
conservative movement. Certainly no one can do more than I have done in 
the effort for privatization. The difference that has to be 
distinguished in this case is you can't privatize business, you can't 
privatize functions that are necessary for the survival of this 
country.
  Let us just say, for example, that in the F-100 engines which are 
used in some of our combat machines that are necessary to defend 
America and we saw performing so well in the Persian Gulf war, that has 
to be done, we have decided, as a policy for America in public depots. 
And the reason is even if it costs more money--I do not think it does. 
I think I can come up with an argument that will say that we can do 
things more efficiently in some of those functions in the public 
depots; we are set up to do that. But even if we were not able to do 
that, there is another reason why they have to be done in the public 
sector, and that is the strategic interests of the United States, the 
defense issues.
  We have all agreed as the policy of this country that core 
activities, core functions, must be done by the public sector. And so 
we established this somewhat arbitrary, which it is arbitrary, 60-40, 
and I was willing to accommodate one of the very prominent Senators 
from Arizona on the committee, Senator McCain, and Senator McCain did 
appreciate that very much. So we changed that, and not only are we 
going to give the ability to the public depots to team, and that is to 
go outside and subcontract some work, I am willing to count that in any 
formula as public sector work, even though it is done by the private 
sector.
  Now, that is a great, I think, compromise that we made in order to 
accommodate some of the Senators who had concerns, and consequently 
that Senator is in support of the language that is found in this bill.
  So I think that if we could present the argument, there is no way you 
could give even a 20-percent advantage to the public sector in depot 
maintenance and still have a level playing field. We are fully aware of 
the process that is written into our system that allows the disposition 
of Federal properties to be first offered to the Federal Government, 
then the State government, then ultimately to local subdivisions such 
as Tulsa, OK, or San Antonio, TX. And so in the event they at no cost 
in the case of a San Antonio, TX, are able to acquire Kelly Air Force 
Base and have that multi, multimillion-dollar facility at no cost, they 
in turn then can give that to a contractor who will bid with no 
overhead whatsoever.

  Now, that is something with which we cannot compete in Tinker Air 
Force Base or they could not compete with in any other military 
installation. And there are many other--I have already talked about 
this and talked about those things that are in the bidding process 
which make it so that we cannot do it.
  I was a little bit surprised when the junior Senator from Texas was 
talking about John White. During the committee meetings that we had, 
John White was not able to answer questions about how to level the 
playing field and provide for real competition if it is desirable.
  Keep in mind, Mr. President, it is not desirable because we have 
established as a policy that those core functions that are necessary to 
protect the lives of Americans should be done in public depots. If you 
do not do that, you are going to have a situation where we can be held 
hostage in times of war, and we know what that could mean for us.
  Given the manner in which competition is structured, everyone already 
knows that private sector bids will come in well below depots, and 
there are two reasons why. The private bidders can use marginal 
pricing. We know what marginal pricing is in Government work. Private 
bidders, unlike the public sector, are allowed to use

[[Page S5921]]

marginal pricing to underprice something to get their foot in the door, 
and once the foot is in the door we become reliant upon them and then 
they run off. I am not saying the people who are the private sector are 
unscrupulous or in any way demeaning what they do. They are out in the 
competitive world, and they are willing to use their assets to bid 
below cost just to get in there so that the public sector would no 
longer have the ability to provide that work. I think the Senator from 
Utah made a very good point. We are losing that ability today. As the 
skilled workers, whether they are located in Oklahoma or Utah or 
Georgia, are leaving, getting into other professions, so we would 
have--every week that goes by we would have a more difficult time in 
having this as public sector work that would defend America.
  So I conclude, Mr. President--and I do not want to be redundant--by 
saying that another bottom line is right here. This is a GAO report. 
The GAO report agrees with what the Air Force initially said on how 
much money would be saved by closing the two bases and transfer that 
workload to other ALC's. Then they later on, when this administration 
took a position against it right before the election, they rescinded 
that report, but the GAO, which is independent of that political 
influence, came out and said very clearly if you do it, it is going to 
cost the defense system an additional $468 million a year. And 
certainly the man who is presiding right now, the honorable Senator 
from Virginia, who is one of the highest ranking members of the Senate 
Armed Services Committee, is fully aware that if we have to somehow 
come up with $2 billion over a 5-year period to take out of the defense 
budget in order to accommodate an exception to the BRAC 
recommendations, where is it going to come from? He will remember very 
well we had the chiefs of the services there, and we gave them the 
alternatives. It has to come from quality of life, modernization, force 
strength or readiness. There are only four places it can come from. We 
cannot predict the contingencies this administration will get us into 
that are very expensive. We can predict these, and there is no place we 
can come up with this money. So this is an extremely important fiscal 
issue, and I wanted to have the opportunity to respond to the senior 
Senator from Texas.
  Mr. President, I observe the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  (Mr. INHOFE assumed the chair.)
  Mr. SPECTER. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER (Ms. Collins). Without objection, it is so 
ordered.

                          ____________________