The Congress: Past Imperfect, Future Tense

John P. C. Fogarty

Editors' Summary: The 99th Congress closed out its second session with a flourish, passing several key environmental bills and coming close to agreement on several others. The new Democratic majority in the Senate gives every indication that the 100th Congress will be even more active. This comment reviews the major environmental activities of the 99th Congress' second session, and discusses the likely topics of environmental debate on tap for the first session of the 100th.

[17 ELR 10010]

When the 100th Congress convenes on January 6, 1987, it will be a new and in some ways rejuvenated body, with its own set of priorities and initiatives. Nevertheless, it will still be shaped by the experiences of the 99th Congress, which from an environmental perspective plodded along almost aimlessly for the first half of 1986. Congress seemed to find its muscle only in the session's waning days, ultimately winning a High Noon-style showdown with the President over the Superfund reauthorization bill.

The inefficiency so much in evidence during the second session could hardly have been expected in light of the work done during the first.¹ At the end of 1985, legislation amending the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund),² the Federal Water Pollution Control Act (FWPCA or Clean Water Act),³ and the Safe Drinking Water Act (SDWA)⁴ had already passed both houses in some form.⁵ By comparison, in mid-1986 two of these bills, Superfund and the Clean Water Act amendments, appeared terminally stalled; both were eventually cleared for the President's signature only days before the Congress finally adjourned.⁶ This dilatory timing allowed the Clean Water Act reauthorization to be killed by pocket veto.⁷

Nevertheless, the 99th Congress did finally manage to agree on several major environmental initiatives, and came tantalizingly close on others.⁸ Groundwork for the 100th Congress on many issues has already been done. In addition to the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), the vetoed Clean Water Act will be reintroduced as is, and the legislative history for acid rain is already burgeoning.

Impact of the Election

With the new Democratic majority in the Senate and the unexpected weakening of the President in the wake of revelations concerning arms shipments to Iran, the 100th Congress promises to become one of the most active and independent legislatures in recent memory. New Senate Majority Leader Robert Byrd (D-W.Va.), speaking on the Senate's plans to again pass the Clean Water Act reauthorization bill, confirmed that the Senate will take the unusual step of remaining in session from the opening gavel through January 27, when President Reagan is expected [17 ELR 10011] to deliver the State of the Union Address. Normally, the Senate would recess after opening formalities on January 6. Nothing that the Senate is ready to take the initiative, Byrd said, "The President has his schedule. We have ours."⁹

The changeover of the Senate from Republican to Democratic control is not likely to radically alter the environmental agenda on Capitol Hill.¹⁰ The new Congress will essentially pick up where the old one left off. Subtle shifts in emphasis and in inter- and intra-committee dynamics are likely, however. For example, there were some minor jurisdictional squabbles between the Senate Environment and Public Works Committee and the Agriculture Committee over portions of the failed FIFRA revamping this last term, and such bickering could abate with the new tandem of Senator Quentin Burdick (D-N.D.), replacing Senator Robert Stafford (R-Vt.) at Environment, and Senator Patrick Leahy (D-Vt.), replacing Senator Jesse Helms (R-N.C.) at Agriculture. Still, since the line between agricultural and environmental issues is sometimes fuzzy, it may take more than personality politics to effect an accommodation.

Personality could play a larger role within the Senate Environment Committee itself.¹¹ Since Senate committee chairman are limited to only one subcommittee chairmanship, Senator Burdick will not chair any environment subcommittee; he will instead chair the Agriculture, Rural Development, and Related Agencies Subcommittee of the powerful Appropriations Committee. It appears likely that Burdick will delegate some major issues, such as acid rain, almost entirely to the subcommittees.¹² Thus Burdick, who has been rated as the most conservative majority member of the committee on environmental issues,¹³ will not be in as ready a position to influence day-to-day internal committee matters as was his predecessor, Senator Stafford, who chaired the Transportation Subcommittee. Moreover, the highly visible Senator Daniel Patrick Moynihan (D-N.Y.), the second ranking Democrat, will now have an even greater opportunity to make his presence felt within the committee. In addition, considerable deference is likely to be paid to Senator Stafford, functionally elevating his minority position. Senator Moynihan will chair the Water Resources Subcommittee and Senator Stafford will remain on the Transportation Subcommittee.

Only a few changes are in store for the Senate Energy and Natural Resources Committee. New Chairman J. Bennett Johnston (D-La.) is probably immune from the sort of charge levied against former Chairman James McClure (R-Idaho), to the effect that he primarily pursued Administration objectives, but since Senator Johnston is known as a strong supporter of oil and gas interests, no one is expecting much of a change in the direction of the committee. Earlier it was reported that Johnston was seeking a more prestigious Senate post, such as on Appropriations or Finance, and was even "putting out feelers" to determine if he had the votes to become Majority Leader.¹⁴ It is unknown what effect his failure to acquire a higher post will have on the Energy Committee's agenda. In the House, most of the attention will be focused on subcommittee chairmanships. The Energy and Commerce Committee's subcommittees will see a major reshuffling. The Fossil and Synthetic Fuels Subcommittee will likely be abolished or merged with another subcommittee, owing to the relative paucity of fossil fuel issues in recent years. The Chair of the Health and Environment Subcommittee opened as former Chairman Timothy Wirth (D-Colo.) did not seek reelection to the House, and was elected to the Senate instead. The restructuring will send subcommittee chairmen and members scrambling for new posts.¹⁵

Beyond a few carryover issues,¹⁶ the environmental agenda for the 100th Congress as a whole is still forming. Transportation and disposal of hazardous and nuclear wastes will probably receive greater attention than has been the case in recent years, encouraged especially by the western states. Biotechnology issues may receive increased scrutiny as the new science begins its move from the lab to actual application. The peculiar nature of biotechnology, as it does not fit nearly within any single category, ought to result in an interesting jurisdictional struggle among committees dealing with environment, agriculture, and science and technology.

Water

Congress during this last term made considerable progress in overhauling the nation's water laws. The SDWA Amendments of 1986,¹⁷ that Act's first comprehensive reform in its 14-year history, substantially reinforces and expands its protective ambit.¹⁸ Primary drinking-water standards and enforcement provisions have been buttressed,¹⁹ [17 ELR 10012] variances and exemptions limited,²⁰ and tough new groundwater protection programs added.²¹ Although the debates on the bill never became divisive, they did reveal Congress' general dissatisfaction with the Environmental Protection Agency's (EPA's) implementation of the SDWA.²² The new amendments impose over 30 new deadlines for EPA action and narrow agency discretion in enforcement matters. Generally, the SDWA's reauthorization should translate into a major improvement in the safety of the nation's drinking water supply.²³

Congress' water program suffered a setback, however, when amendments to the Clean Water Act were pocket vetoed by President Reagan on November 6, 1986. The Water Quality Act of 1986 (S. 1128)²⁴ had been passed unanimously by both houses just prior to adjournment, so a pitched battle over the Clean Water Reauthorization may be in the offing for the 100th Congress. Representative Jim Wright (D-Tex.), the next House Speaker, has promised to make the FWPCA's reauthorization his first priority;²⁵ the bill will be introduced in its current form to the new Congress as H.R. 1.²⁶ Representative James Howard (D-N.J.), the Chairman of the Public Works Committee, is expected to give the bill preferential treatment. In the Senate, Senators Moynihan, Sarbanes (D-Md.), and Proxmire (D-Wis.) have all pledged to make the Act's reauthorization their personal priority, with Senator Moynihan promising to introduce the bill on the first day of the new session.²⁷

The bill as vetoed (and as it will be reintroduced) contains controversial provisions for local sewage treatment and sewer construction grants. The Administration particularly objected to the construction grants program, and had called for its rapid phase-out.²⁸ Nevertheless, generous construction grants were included in the final compromise bill:²⁹ $2.4 billion annually through fiscal 1988, and $1.2 billion annually thereafter.³⁰ The President pointedly objected to these provisions in his statement explaining the veto.³¹

The bill would also have added a new title VI to the FWPCA, establishing State-administered Water Pollution Control Revolving Funds (SRFs).³² SRFs, which would gradually wean states from federal funds, would have been created through a program of "capitalization grants." These grants would have gone directly to the states, and were designed to "provide a feasible transition to state and local financing" of wastewater treatment facilities.³³ The SRFs essentially would substitute a loan assistance program for outright grants. The President did not specifically single out the SRF program as problematic, but he clearly voiced displeasure over the way S. 1128 handled federal expenditures for the transition of sewage treatment projects to state and local control.

In vetoing the bill, President Reagan also objected to the bill's $500 million program for cleanup of nonpoint source pollution. The program to control runoff from streets and farms would have become a major new addition to the Clean Water Act,³⁴ and it is unlikely that this program will be dropped in deference to the President when Congress next considers the reauthorization bill. Runoff is recognized as a significant pollutant that adversely impacts the quality of surface water, groundwater, watersheds, and wetlands. It is also gaining recognition as an economic burden: a recent study concluded that "[p]ollution of surface water from farm sediments costs billions of dollars annually, and agricultural pollutants damage about 17 percent of stream miles …."³⁵

EPA also has an acute interest in the Clean Water Act's rapid reauthorization. Administrator Lee Thomas has expressed concern over the Agency's ability to implement the storm water permitting scheme ordered by the courts in ongoing litigation.³⁶ The debate revolves around the definition of "point source" under the Clean Water Act. EPA has consistently attempted to narrow the definition so as to allow it to ignore what it considers to be many de minimis sources — such as from rooftops and highway cloverleafs³⁷ — but so far has been unable to do so by regulation. The Clean Water Act reauthorization would have permitted EPA to concentrate on storm water point sources of greater significance, and established what the Agency believes to be a more reasonable timeframe for doing so, although still far from perfect in their view.³⁸ The veto means that EPA must embark upon a vast permitting and regulatory program that neither EPA nor industry desires.³⁹ Nevertheless, EPA is going ahead with its storm-water regulation plans. The final rule is currently under review by the Office of Management and Budget, prior to promulgation. The hopes at EPA are that the Act will be amended before the time comes for implementation of the storm water permitting scheme.⁴⁰

[17 ELR 10013]

The third major water initiative of the 99th Congress, the water Resources Development Act of 1986,⁴¹ was signed into law just hours before it would have died by pocket veto at midnight on November 17, 1986. The $12 billion water resources bill has been alternately praised as necessary for the conservation and rehabilitation of the nation's water resources, and damned as the worst sort of pork-barrel legislation.⁴² Both charges are probably accurate to a degree. There are, for example, extensive provisions devoted to port development⁴³ and flood control projects.⁴⁴ Conversely, the law also contains many conservation provisions, including an allocation of $40 million for the cleanup of small lakes clogged with silt and debris,⁴⁵ measures to abate streambank and shoreline erosion,⁴⁶ and provisions to mitigate fish and wildlife damage as a result of other water development projects.⁴⁷ The law also continues the trend toward increasing the local share of costs of water resource projects, and raises the local share for flood control projects from current levels by 25 to 50 percent, and up to 60 percent of the cost for harbor dredging.

Looking ahead to the 100th Congress' treatment of water issues — apart from the reintroduction of the Clean Water Act — a shift in emphasis to groundwater protection issues is a likely consequence of Senator Burdick's assumption of the Environment and Public Works Chair. As characterized by one Environment Committee staffer, groundwater issues will be "hot" this year. Although the more conservative Senator Burdick generally supported the more liberal Senator Stafford on groundwater issues, Burdick's strong support of agricultural interests could be an interesting factor in how the committee approaches the problem of groundwater contamination by farming chemicals.⁴⁸ Moreover, since groundwater was one of the sticking points in the attempt to reform FIFRA, Congress' ability to reach a consensus on this topic may be slowed considerably.

Pesticides

Reform of FIFRA by the 100th Congress would be a major accomplishment.⁴⁹ FIFRA's stumbling block this past session came in the Senate, even though a comprehensive reform bill was passed late in the term.⁵⁰ That approval was deceptive, however, since the Senate vote was really a rejection of the heavily supported House version.⁵¹ Most visible among the differences in each bill was the House provision allowing states to set more restrictive standards for pesticide residues on foods. The Senate's version would have prescribed uniform national standards. Liability-shifting provisions in the House bill also met with disfavor in the Senate.⁵² The House would have imposed liability for damages caused by the use of pesticides on the product's registrant, commonly the manufacturer, while the Senate preferred to charge the pesticide's user, commonly the farmer, with liability for damages or injury. These and other differences guaranteed FIFRA's demise.

The lack of time for adequate floor debate probably contributed to the inability of either house to accept any of the terms of the other.⁵³ A narrowly rejected Senate amendment would have paralleled the House provision respecting pesticide residues.⁵⁴ Many other issues expected to come up on the Senate floor did not simply for lack of time.⁵⁵

The lack of consensus means that FIFRA may have to wait. The core of any reform bill will almost certainly include provisions: (1) to streamline the registration process to abate the huge backlog at EPA; (2) to establish a new reregistration program to ensure that pesticides with older registrations are reexamined for safety; and (3) to provide for public access to health and safety data, among other public disclosure requirements.⁵⁶ These and other valuable provisions were lost in the effort to reform FIFRA.⁵⁷

FIFRA is not expected to be a high priority item for the new Congress. Even EPA, which has in the past lobbied hard for reform, is not expected to push nearly as hard as it will for the Clean Water Act reauthorization.⁵⁸ The expected emphasis on groundwater issues is also likely to slow the pace with which the new FIFRA bill will wind its way through Congress. There was already dissatisfaction with the way the nearly passed FIFRA bill treated groundwater this past session: Senator Leahy, the new [17 ELR 10014] Agriculture Committee Chairman, complained that the Senate FIFRA bill would not adequately address "EPA's past timidity" with respect to groundwater protection, even while he supported the measure.⁵⁹ Reform of the pesticide laws may thus be a long time in coming.

Air

Air pollution issues received little concerted attention this last session, and the prospects are only slightly better for increased attention for the coming session. No major work on the Clean Air Act as a whole is expected.⁶⁰ Most efforts in this area will be directed toward enacting something to control acid rain, which is believed to be killing lakes and forests throughout the northeast.⁶¹ Promising attempts to address the problem highlighted the start of the 99th Congress' second session as several good acid rain bills were introduced.⁶² One enthusiastically greeted House bill had over 150 cosponsors.⁶³ All, however, remained stuck in committee.

In an unusual twist of politics, the Republican loss of Senate control may assist Senator Stafford's efforts to get acid rain legislation moving. Now that he no longer chairs the Senate Environment Committee, some of the Environment Committee staff are speculating that he will have more time to shepherd a bill through to law.⁶⁴ Stafford will probably introduce a bill similar to one he introduced last session. That bill would have set a goal of reducing, by 1995, the amount of sulfur dioxide produced by major industrial sources by 12 million tons annually.⁶⁵ This would affect mostly coal-fired power plants, and the bill would have directed their compliance or shutdown. Emissions of nitrogen oxides, carbon monoxides, and hydrocarbons from cars and trucks would also have come under strict regulation by the bill.⁶⁶

Although Senate Environment Committee Chairman Burdick has identified acid rain as a "priority issue," it probably is not at the top of his list.⁶⁷ As a consequence, he will probably delegate the issue when it comes up. This could cut both ways. One view is that Burdick will not stand in the way of any acid rain legislation, thereby allowing it to go through. The other is that acid rain will not make it through the committee without his active support, and depending upon other developments, this will stand in the way of the bill in the same way that Representative Dingell (D-Mich.) stood in the way of a House acid rain bill last session.⁶⁸ The best guess is that while Senator Burdick will not lobby hard for an acid rain bill, neither will he actively oppose one. This will probably translate into full floor action on acid rain controls for the 100th Congress, although new Senate Majority Leader Robert Byrd is a well known opponent of acid rain controls.⁶⁹

Oil and Hazardous Waste

Most of the drama of the 99th Congress was supplied by the events surrounding the passage and signing of the Superfund Amendments and Reauthorization Act of 1986 (SARA).⁷⁰ Over three years in the making,⁷¹ by late September 1986, the effort to keep the nation's hazardous waste cleanup program fully funded faced death. The program portions of the bill (H.R. 2005) had long been settled and agreed to, but tax conferees had been unable to agree on the funding provisions and were no longer meeting. Off the Hill, the $9 billion cost of the program was way above White House specifications, and talk of a veto was common. Even if the impasse could be broken, it seemed, the bill might not make its way past the President's desk.

Senator Stafford, in an effort to salvage at least part of the program, introduced a bill that contained only the non-tax (program only) provisions already agreed to.⁷² The move was seen by some as an attempt to prod the tax conferees into meeting, but its influence on the conferees was probably minimal since their attention was focused on the massive tax overhaul bill then pending.⁷³ EPA Administrator Lee Thomas also made a personal appeal for rapid passage of the bill, and in a letter warned Congress [17 ELR 10015] that the complete shutdown of all hazardous waste cleanups if the funding bill was not passed.⁷⁴

The logjam would not break until the tax bill was cleared, and in late September the tax conferees finally met. Working quickly, the conference report was filed on October 3,⁷⁵ amid reports that Congress was planning to adjourn at any time. With lightning speed the report was approved overwhelmingly by the Senate the same day,⁷⁶ and by the House less than one week later.⁷⁷ By then, it was well known that the President was unhappy with the legislation because of the provision for a broad-based general corporate tax as a cleanup revenue source. A veto was openly discussed.⁷⁸

By this time, the November elections were only a few weeks away, and the legislators were anxious to adjourn to begin their reelection campaigns' final push. This would have exposed SARA to a pocket veto, however. In an unusual bipartisan move, both houses pledged to remain in session, at least in form, to prevent the pocket veto.⁷⁹ Presidential inaction would now permit the bill to become law. The White House's only alternative to defeat the bill would have been an affirmative veto, but just a few days before Congress had overridden the President's veto of the South African sanctions bill,⁸⁰ and SARA passed both houses by margins much greater than the necessary two-thirds needed to effect an override.⁸¹ The President reluctantly signed SARA while aboard Air Force One on October 17, 1986. Congress did, however, promise not to enact broad-based corporate taxes for special purposes in the future.⁸²

SARA, CERCLA's first major overhaul since its enactment in 1980, generally toughens cleanup standards⁸³ and provides new incentives for responsible parties to become involved in cleanup activities at an early date.⁸⁴ Other significant features found in the new law are stiff penalties of up to $75,000 per day for violations of consent decrees,⁸⁵ and required health assessments at each cleanup site.⁸⁶ SARA's long and sometimes ambiguous legislative history⁸⁷ evidences the many competing concerns addressed by the three-year reauthorization effort. Nowhere in the history, however, is there any indication of a consensus of what the President and Congress intended to produce. Complicating matters is SARA's incorporation of standards and criteria from other environmental acts.⁸⁸ Consequently, CERCLA now requires an even greater level of substantive knowledge of the Resource Conservation and Recovery Act (RCRA), the Safe Drinking Water Act, the Clean Air and Clean Water Acts, and even some state laws than previously.⁸⁹ An already statutorily and judicially complex law has become even more complex.

Unlike cleanup of land-based oil and hazardous wastes, measures to clean up such spills into water have received comparatively little attention. A proposed Oil Pollution Liability and Compensation Act (S. 2799) was passed by the Senate late in the session,⁹⁰ but it became lost in the scramble to pass SARA and other measures perceived to be of greater importance. The bill would have established a sort of superfund for oil spills on water. By consolidating and improving existing federal laws regarding liability, and by setting up a compensation fund for damages from oil spills, the bill would have plugged a gap that still exists in CERCLA's coverage. And like SARA's preference for employing stricter state cleanup standards, the Oil Pollution Liability and Compensation Act would have supplemented, not displaced, state laws regarding oil spill liability.⁹¹

Asbestos

Almost unnoticed was the passage of the Asbestos Hazard Emergency Response Act of 1986.⁹² Congress was understandably concerned with evidence that at least 15 million school children and 1.4 million school employees in 31,000 school buildings are exposed to dangerous levels of asbestos every school day.⁹³ The Act adds a new title II to the Toxic Substances Control Act,⁹⁴ and directs EPA to develop "management plans" in the form of regulations for friable asbestos and asbestos-containing materials in both public and private elementary and secondary schools.⁹⁵ In most cases, these "management plans" will require the asbestos' removal and disposal, but EPA is granted discretion to determine the appropriate response action.⁹⁶ Mindful of EPA's workload and past failures to promulgate mandated regulations, the law also contains inspection and removal regulations that automatically take [17 ELR 10016] effect if EPA does not act within the prescribed time frame.⁹⁷

The law envisions ambitious response plans. EPA must first define and develop inspection procedures to determine whether asbestos is present in a school building or facility. Second, response plans to remove or insulate the asbestos must be developed so that the "statutory standard of 'protection of human health and the environment' — the same standard that applies under RCRA —" is met.⁹⁸ Reference to the RCRA standard may be problematic, however, since regulations under this standard have not yet been promulgated; one of the sticky issues there is whether and how costs can be taken into account in selecting an appropriate response action. The ambiguous language of the accompanying House Report compounds this problem: "The requirement that EPA use the least burdensome method in defining appropriate response actions does not in any way affect this overriding standard."⁹⁹ This could be read as meaning that response costs are at best secondary to the "overriding" goal of achieving the health-based standard under RCRA; on the other hand, it may only indicate that Congress was aware that the costs of asbestos removal from buildings is less likely to be a factor than is the case with the garden-variety RCRA response action, where costs are more openended.¹⁰⁰

EPA must also publish regulations governing the overall removal program, which includes air monitoring, periodic reinspection and "long-term surveillance" of the schools, and proper asbestos transportation and disposal methods, again tied to RCRA standards.¹⁰¹

The overall cost of the program has been estimated by the Congressional Budget Office as $5 million in 1987 and $3 to $4 million annually thereafter.¹⁰² Loan repayments to the "Asbestos Trust Fund," also established by the new law, are expected to be less than $1 million by 1989, but increasing to $3 million by 1991.¹⁰³ An additional $25 million has been authorized, to be distributed according to financial need, for schools to carry out the program.¹⁰⁴

Epilogue

The second session of the 99th Congress, which convened January 21 and adjourned October 18, 1986, saw both houses in session a cumulative total of 272 days, over 30,000 pages of the Congressional Record filled, nearly 1,000 measures reported out of committee from nearly 4,000 introduced, 869 House and Senate reports producted, 583 yea-and-nay votes, 226 public laws enacted, and 1 veto overridden.¹⁰⁵ Scattered among the statistics were some significant new environmental measures: Congress reauthorized and strengthened CERCLA, the Clean Water Act, the Safe Drinking Water Act, and the Toxic Substances Control Act.¹⁰⁶ Other environmental accomplishments of note included the 1986 Water Resources Development Act,¹⁰⁷ the Emergency Wetlands Resources Act of 1986,¹⁰⁸ which increases federal funding for federal and state wetlands acquisition, and reauthorization of the Sikes Act,¹⁰⁹ to expand federal wildlife management programs on military lands. In very many ways, the environmental successes of the 99th Congress outstripped the failures, and in doing so it became the most productive Congress of any since 1980.¹¹⁰

1. See generally Comment, Congress in 1985: Much Unfinished Business, 16 ELR 10034 (Feb. 1986).

2. 42 U.S.C. §§ 9601-9657, ELR STAT. 41941.

3. 33 U.S.C. §§ 1251-1376, ELR STAT. 42101.

4. 42 U.S.C. §§ 300f-300j-11, ELR STAT. 41101.

5. See 131 CONG. REC. S12184, H11547 (daily eds. Sept. 26 & Dec. 10, 1985) (Superfund); id. at S8080, H6025 (daily eds. June 13 & July 23, 1985) (Clean Water Act); id. at S6391, H4290 (daily eds. May 16 & June 17, 1985) (SDWA).

6. Congress, in fact, waited until the last moments to pass most of its legislation of substance. See McGinley & Taylor, Congress Clears Landmark Legislation In Its Final Hours Before Adjournment, Wall St. J., Oct. 20, 1986, at 3, col. 2.

7. The bill, S. 1128, had cleared the House 408-0 on October 15, 1986, and the Senate 96-0 the next day. Congress adjourned the following day. See 132 CONG. REC. H10922, S16424, S16607 (daily eds. Oct. 15-16, 1986). The bill had been transmitted to the President October 25, and died when it remained unsigned by midnight, November 6, 1986. See infra notes 24-40 and accompanying text. The President was criticized for delaying the veto of the water bill, especially by consumer advocate Ralph Nader. Nader charged that the President was only waiting until after the mid-term elections to veto the bill to avoid harming the campaigns of Republican candidates. Weisskopf, President Accused of Delaying Water Act Until After Election, Washington Post, Oct. 29, 1986, at A4, col. 1. The pocket veto did in fact come immediately after the election. Weisskopf, President Vetoes Bill To Clean Up Waterways, Washington Post, Nov. 7, 1986, at A3, col. 5.

8. See infra notes 17-47, 49-52, 70-82, 92-97 and accompanying text (water, pesticides, oil and hazardous wastes, and toxics, respectively). Environmental groups were generally pleased with the accomplishments of the 99th Congress. See, e.g., 99th Congress Passes Major Environmental Bills, WATER NEWS, NOV. 1986, at 1; Congress Helps Wildlife Before Adjourning, OUTDOOR NEWS BULL., NOV. 21, 1986, at 1. By comparison, just a few months earlier, such groups tended to be critical of Congress' inability to get any work done. See, e.g., Congress in Recess — and The Things Left Hanging, PLI NEWSL., Sept. 1986, at 1.

9. Senate Democrats Pledge to Take Initiative, Washington Post, Nov. 21, 1986, at A20, A21, cols. 1, 3.

10. The consensus among conservation groups, however, is that the 100th Congress will firmly support environmental protection issues. Sierra Club Chairman J. Michael McCloskey said that the past election brought in a "new generation of environmental leaders …." Sierra Club Hails Newly Elected Environmental Backers in Congress, 14 LAND USE PLAN. REP. 360 (1986).

11. There has been at least one proposal, however, to recognize the committee in light of the increasing number of hazardous waste bills. The problem is that while the "old environmental pollution subcommittee had formal jurisdiction over Superfund in the past," what happened was that the "full committee dealt with all Superfund hearings and markups, and no subcommittee had [comprehensive] jurisdiction." A proposed solution is to create an entirely new subcommittee with jurisdiction over the entire Superfund program. Democrats Move to Reorganize Senate Environment Committee, 14 LAND USE PLAN. REP. 372 (1986).

12. Senator Burdick has identified acid rain as a "priority issue] [," Slants & Trends, 24 AIR/WATER POLLUTION REP. 441 (1986), but some Senate Environment Committee staff expect the Senator to delegate the issue so that Senator Stafford may play a greater role in shaping the bill. See SIERRA CLUB NAT'L NEWS REP., OCT. 29, 1986, at 1.

13. The League of Conservation Voters gave Senator Burdick a 44 percent rating on votes during 1983-84, the lowest rating among committee Democrats, and lower than most committee Republicans.

14. Acid Rain Control Impasse May Be Eased By Political Battles, 24 AIR/WATER POLLUTION REP. 400 (1986).

15. Subcommittees of the House Interior and Insular Affairs Committee will also receive new chairmen with the departure of Rep. John Seiberling (D-Ohio), who was chairman of the public lands subcommittee, and Rep. James Weaver (D-Or.), who chaired the oversight subcommittee. Two House Interior Subcommittees To Get New Chairman In Realignment, 14 LAND USE PLAN. REP. 347 (1986).

16. See supra notes 24-26, 58-59 and accompanying text (Clean Water Act and FIFRA, respectively).

17. Pub. L. No. 99-339, 100 Stat. 642, codified at 42 U.S.C. § 300f-300j-11, ELR STAT. 41101.

18. See generally Gray, The Safe Drinking Water Act Amendments of 1986: Now a Tougher Act to Follow, 16 ELR 10338 (Nov. 1986).

19. SDWA § 1412(b)(1), 42 U.S.C. § 300g-1(b)(1), ELR STAT. 41103 (new contaminant regulations); id. §§ 1414, 1423, 42 U.S.C. §§ 300g-3, 300h-2, ELR STAT. 41106, 41111 (enforcement).

20. Id. §§ 1415, 1416, 42 U.S.C. §§ 300g-4, 300g-5, ELR STAT. 41106, 41107.

21. Id. § 1428, 42 U.S.C. § 300h-7, ELR STAT. 41114 (wellhead protection and critical aquifer protection).

22. See Gray, supra note 18, at 10341.

23. Id. at 10345.

24. S. 1128, 99th Cong., 2d Sess. (1986).

25. President Vetoes Clean Water Act; Democrats Predict Easy Repassage, 24 AIR/WATER POLLUTION REP. 433 (1986).

26. Id.

27. Id.; see also Press Release, Office of Senator Daniel Patrick Moynihan, Sen. Moynihan Will Introduce Legislation If President Fails to Sign Clean Water Act Today (Nov. 7, 1986).

28. See Memorandum Withholding Approval of S. 1128, 22 WEEKLY COMP. PRES. DOC. 1541 (1986).

29. H.R. REP. NO. 1004, 99th Cong., 2d Sess. 16 (1986).

30. Id. at 104.

31. Supra note 28.

32. H.R. REP. NO. 1004, 99th Cong., 2d Sess. 104-05 (1986) (S. 1128, § 212).

33. Id. at 105.

34. Id. at 141 (S. 1128, § 316).

35. See R. HEALY, T. WADDELL & K. COOK, AGRICULTURE AND ENVIRONMENT IN A CHANGING WORLD ECONOMY (1986) (cited in 14 LAND USE PLANNING REP. 339 (1986)).

36. See, e.g., Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369, 8 ELR 20028 (D.C. Cir. 1977).

37. National Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 13 ELR 20015 (D.C. Cir. 1982) (spillways).

38. See S. 1128, tit. IV, 99th Cong., 2d Sess. (1986), reprinted in H. CONF. REP. NO. 1004, 99th Cong., 2d Sess. 62-72 (1986).

39. See 50 Fed. Reg. 32548 (Aug. 12, 1985); id. at 9362 (Mar. 7, 1985) (proposed rule).

40. EPA To Give Top Priority To CWA Reauthorization, 24 AIR/WATER POLLUTION REP. 443 (1986). In addition, Thomas is hoping that Congress will respond to President Reagan's call for a less expensive CWA bill, since he expects the President to veto any bill costing more than $6 billion. Thomas To Push CWA With Lower Price Tag, Fewer "Pork" Projects, INSIDE E.P.A., NOV. 14, 1986, at 11.

48. Interestingly, the emphasis on groundwater contamination may actually give a boost to acid rain legislation, which was so badly bottled up during the last two sessions of Congress. See infra notes 64-69 and accompanying text.

49. For a good overview of the competing interests involved in FIFRA reform, compare Weinstein, Amending FIFRA — An Industry View, 15 ELR 10130 (May 1985) with Feldman, Federal Pesticide Control Law: The Need for Reform, id. at 10132.

50. 132 CONG. REC. S15286, S15355 (daily ed. Oct. 5, 1986) (bill reprinted).

51. The House passed its version of FIFRA by a 329 to 4 vote. Id. at H7240, H7243, H7248 (daily ed. Sept. 19, 1986) (bill reprinted). See generally H.R. REP. No. 695, 99th Cong., 2d Sess. (1986).

52. See Senate Vote Allowing Stricter State Controls Likely To Prevail in FIFRA, INSIDE E.P.A., Oct. 10, 1986, at 3-4.

53. FIFRA Deadlock Prompts Call For Formal Conference; Bill May Die, INSIDE E.P.A., Oct. 17, 1986, at 2.

54. 132 CONG. REC. S15289 (daily ed. Oct. 9, 1986).

55. E.g., id. at S15339-42 (remarks of Sen. Kassebaum, withdrawing amendment to permit applicants to file abbreviated pesticide registrations because of a lack of time to properly debate the amendment's merits and because "it [was] very important for the FIFRA bill to move forward").

56. See S. REP. No. 424, 99th Cong., 2d Sess. 16-17 (1986) (nothing these as comprising the basic "purpose" of FIFRA reform).

57. Other important FIFRA reform features are listed id. at 1-2.

58. EPA Administrator Thomas had earlier voiced his intention to push hard for FIFRA reauthorization, see INSIDE E.P.A., Oct. 24, 1986, at 1, but later developments, such as the CWA veto after Congress had adjourned, see, e.g., supra notes 25-27 and accompanying text (CWA priority), have necessarily changed priorities for EPA and the Congress. Slants & Trends, 24 AIR/WATER POLLUTION REP. 431 (1986).

59. S. REP. No. 424, supra note 56, at 209, 212 (additional views of Senators Harkin and Leahy).

60. Even EPA Administrator Lee Thomas is not pushing hard for new Clean Air Act amendments, although he is not opposed to any changes. Thomas believes that EPA already has enough to do with the new environmental programs passed this last session, and that he has sufficient authority under the Act as it currently stands to "run a good program …." Slants & Trends, 24 AIR/WATER POLLUTION REP. 441 (1986).

61. A newly patented technique developed by researchers at the University of Rhode Island has confirmed the link between airborne pollutants emitted in the Midwest and the increasing acidity of Northeastern rainfall. The technique, approved by EPA, compares the "signature" (the chemical makeup) of the Midwest emissions with the chemical composition of precipitation in the Northeast. A recent study using this technique concluded that approximately 80 percent of the sulfates contained in the snow and rain in the Northeast came from Midwest sources. Study Links Northeast Acid Rain To Midwest Emissions, SIERRA CLUB NAT'L NEWS REP., Aug. 26, 1986, at 2. Recent studies by EPA have shown that acid rain is also prevalent in the Midwest as well. Slants & Trends, 24 AIR/WATER POLLUTION REP. 461, 463 (1986). The effects of acid rain are still felt more harshly in the Northeast, however, because many lakes and rivers in the Midwest contain limestone, which acts as a buffer to the high acidity of the precipitation. Recent studies, although inconclusive, indicate that that the link between acid rain and damage to forests in not a strong as previously believed. Id.

62. See, e.g., S. 2203 & S. 2813, 99th Cong., 2d Sess. (1986). S. 2203 was introduced by Senator Stafford in March, 132 CONG. REC. S2941 (daily ed. Mar. 18, 1986), and S. 2813 was introduced by Senator Proxmire in September. Id. at S12510 (daily ed. Sept. 12, 1986).

63. H.R. 4567, 99th Cong., 2d Sess. (1986). See 16 ELR 10348 (Nov. 1986).

64. See supra notes 11-13 and accompanying text.

65. 132 CONG. REC. S2945 (daily ed. Mar. 18, 1986).

66. Id. at S2944-45.

67. See Democrats Capture Senate Panel Posts; Burdick To Take Environmental Chairmanship, 24 AIR/WATER POLLUTION REP. 432 (1986). It is speculated that Burdick's agricultural interests will impact the ordering of his priorities, although he is expected to continue the direction of the committee's work in this area.

68. 16 ELR 10348 (Nov. 1986).

69. See Slants & Trends, 24 AIR/WATER POLLUTION REP. 451 (1986).

70. Pub. L. No. 99-499, 100 Stat. 1613. For an incisive explication of SARA, see Atkeson, Goldberg, Ellrod & Connors, An Annotated Legislative History of the Superfund Amendments and Reauthorization Act of 1986 (SARA), 16 ELR 10363 (Dec. 1986).

71. 132 CONG. REC. S13108 (daily ed. Sept. 19, 1986) (Sen. Stafford's remarks on introducing the program — only Superfund bill); Atkeson, Goldberg, Ellrod & Connors, supra note 70, at 10366-67.

72. See S. 2840, 99th Cong., 2d Sess. (1986), 132 CONG. REC. S13109 (daily ed. Sept. 19, 1986) (bill reprinted).

73. Tax Reform Act of 1986, Pub. L. No. 99-514, 100 Stat. 2085 (H.R. 3838).

74. Letter from EPA Administrator Lee Thomas, to Senator Robert Stafford, Chairman of the Committee on Environment and Public Works, and to Representative John Dingell, Chairman of the House Committee on Energy and Commerce (Sept. 22, 1986), reprinted in U.S. E.P.A., ENVIRONMENTAL NEWS (week of Sept. 22, 1986).

75. H.R. CONF. REP. No. 962, 99th Cong., 2d Sess. (1986), 132 CONG. REC. H9032 (daily ed.Oct. 3, 1986).

76. The Senate vote was 88-8, 132 CONG. REC. S14943 (daily ed. Oct. 3, 1986).

77. The House approved by a 386 to 27 margin on October 8, 1986. Id. at H9634 (daily ed. Oct. 10, 1986).

78. Weisskopf, White House Backs Off Superfund Veto Threat, Washington Post, Oct. 17, 1986, at A3, col 1.

79. Record Spending Bill Passes House, Washington Post, Oct. 16, 1986, at A8, col. 3.

80. The President's veto of H.R. 4868, the South Africa sanctions bill, was overridden by the House 313-83, 132 CONG. REC. H8672 (daily ed. Sept. 29, 1986), and the Senate 78-21. Id. at S14661 (daily ed. Oct. 2, 1986). The latter vote came just one day prior to the overwhelming Senate approval of the SARA Conference Report.

81. See supra notes 76 & 77 (91 percent pass rate in the Senate; 93 percent pass rate in the House).

82. 22 WEEKLY COMP. PRES. DOC. 1412 (Oct. 27, 1986) (President's statement on signing H.R. 2005 into law).

83. See SARA § 121(a), ELR STAT. 44054, amending CERCLA § 121(d)(2)(A), 42 U.S.C. § 9621(d)(2)(A).

84. Atkeson, Goldberg, Ellrod & Connors, supra note 70, at 10363-64.

85. Id. at 10366.

86. Id. at 10364, 10366.

87. A concise, although by necessity not brief, overview of the legislative history is contained at id. at 10366-70.

88. Id. at 10371.

89. See generally ENVIRONMENTAL LAW REPORTER, SUPERFUND DESKBOOK (1986).

90. 132 CONG. REC. S14137, S14144 (daily ed. Sept. 27, 1986) (bill reprinted).

91. See generally S. REP. No. 479, 99th Cong., 2d Sess. (1986).

92. Pub. L. No. 99-519, 100 Stat. 2970.

93. H.R. REP. No. 763, 99th Cong., 2d Sess. 14-15 (1986) [hereinafter HOUSE REPORT].

94. H.R. 5073, § 3(c)(3), 99th Cong., 2d Sess. (1986) (adding title II).

95. Id. § 2; see generally HOUSE REPORT, supra note 93, at 22-24.

96. HOUSE REPORT, supra note 93, at 22-25 (discussion of § 203, "EPA Regulations").

97. Id. at 25-27 (discussion of § 204, "Requirements if EPA Fails to Promulgate Regulations").

98. Id. at 23.

99. Id. (emphasis added).

100. Interview with Dr. Margaret G. Mellon, Director, Toxics Program, Environmental Law Institute, in Washington, D.C. (Nov. 26, 1986).

101. HOUSE REPORT, supra note 93, at 22-25.

102. Id. at 18-19.

103. Id. at 19.

104. Id.

105. 132 CONG. REC. D1349 (daily ed. Nov. 6, 1986) (compilation of statistics on 99th Congress, Second Session).

106. See discussion supra notes 17, 24, 70, 92 and accompanying text (SDWA, Clean Water Act, CERCLA, and TSCA, respectively).

107. See supra notes 41-47 and accompanying text.

108. Pub. L. No. 99-645, 100 Stat. __. $750 million is authorized by the Act for wetlands acquisition over the next five years.

109. Pub. L. No. 99-561, 100 Stat. 3149 (1986). The Sikes Act is reauthorized through fiscal year 1988, and currently 19 million acres of land on military reservations are subject to its fish and wildlife conservation provisions. 132 CONG. REC. H9911 (daily ed. Oct. 14, 1986) (S. 1352 reprinted).

110. See, e.g., Latter from Charles R. Miller, Director of Media Relations, National Wildlife Federation (Nov. 17, 1986).