Legislative Outlook in the House: Only RCRA Amendments Likely

Bud Ward

Editors' Note: As Congress begins the second session of the 98th Congress, we assess both the results of the first session (see Comment, 14 ELR 10005) and the prospects for the second. For the latter task, a crystal-ball gazing exercise, we have enlisted the help of two of the sharpest-eyed observers of congressional trends available: Philip Cummings, Minority Counsel for the Senate Environment and Public Works Committee and Bud Ward, Editor of THE ENVIRONMENTAL FORUM. Mr. Cummings analyzes the chances for Senate action; Mr. Ward those in the House.

Mr. Ward is Editor of THE ENVIRONMENTAL FORUM, a monthly journal of analysis and commentary on environmental issues published by the Environmental Law Institute.

[14 ELR 10003]

There basically are two kinds of legislative activity. One kind leads to enactment of new law or substantive amendments to existing law. In the environmental field, enactment often triggers a lengthy process requiring proposal, promulgation, and enforcement of implementing regulations.

The other kind of legislative activity, far more common than the first, leads not to new law but rather to frenetic lobbying, position-taking, posturing, testifying, and "grassroots" action, frequently culminating in an affirmative decision not to legislate, at least not right away. Decisions not to legislate usually are distinct from the impasses or stalemates that characterize some issues before the Congress.

Expect lots of the second kind of legislative activity in the House of Representatives in this second session of the 98th Congress: lots of smoke, but not much fire; lots of heat, but little light.

[14 ELR 10004]

To be sure, the House's environmental agenda is full as it returns after a recess of some three months. No less than the Senate, the House faces an ambitious calendar in which practically every major Environmental Protection Agency (EPA) regulatory program awaits reauthorization.

The Fire

Indeed, the House last fall completed action on comprehensive amendments to the Resource Conservation and Recovery Act (RCRA). The law provides, in theory, for "cradle-to-grave" oversight of hazardous materials in an effort to prevent future toxic waste cleanup problems.

The RCRA amendments (H.R. 2867), like the companion legislation approved by the Senate Environment and Public Works Committee and awaiting Senate floor action, would substantially restrict land disposal for a wide range of specified chemical wastes unless EPA affirmatively determined — within an ambitious schedule — that land disposal for the wastes was indeed reasonable. If EPA misses the statutorily mandated deadlines for issuing a decision on the range of waste — deadlines that are triggered at intervals for up to 52 months after enactment — a "hammer" provision would legislatively impose a land disposal ban on wastes on which the Agency had failed to act.

Along with land disposal "hammer" provision, the most controversial aspect of the House bill may be a provision eliminating any doubt that Congress intended to extend the bill's regulatory requirements to "small quantity generators." The Gorsuch-Burford EPA had exempted from RCRA's Subtitle C regulations those numerous small quantity waste generators whose cumulative environmental impacts the agency decided should not be high on its priority list. Both the House and the Senate appear dissatisfied with that administrative fiat, and the House bill in particular would reverse it.

But will RCRA amendments pass the Congress this session? Indeed, they are most likely to, and RCRA appears the exception to the general rule that there will be little newly enacted environmental legislation coming from this election-year second session. Both in general intent and in numerous specifics, the House and Senate RCRA amendments are very similar. While numerous "small" differences will have to be reconciled by a conference committee, there appears to be every likelihood for a relatively easy and fast conference that will lead to amendments of RCRA sometime this spring.

The same cannot be said for the other EPA legislation pending before the House as it reconvenes. For one thing, the second session of the 98th Congress has every likelihood of being a very short one. The coming fever of the Presidential and congressional elections likely will lead to an early adjournment and frequent recesses, both physically and mentally, as legislators' attention inevitably returns to their home district electorates. Even before the House gets back into formal sessions, the clock, the calendar, clearly is working against the passage of substantive amendments.

The Smoke

So much for the "fire." The "smoke" is another matter altogether. Who would seriously expect a Democratically-controlled House not to seek to make political capital of the environmental issue in an election year, given the controversies generated over Mrs. Burford and Mr. Watt — and notwithstanding the relative quietude surrounding their successors, Messrs. Ruckelshaus and Clark, at EPA and Interior?

While the House may give environmental issues substantial "play" in this election-shortened second session, few substantive amendments beyond the RCRA bill are likely to be enacted. On the Clean Water Act, for instance, the House Public Works and Transportation Committee's Water Resources Subcommittee is expected to proceed slowly through markup sessions, and the markup vehicle has yet to be written. Subcommittee Chairman Robert Roe (D-N.J.) may introduce his own bill to serve as that subcommittee vehicle, but in doing so he faces inevitable conflict with earlier legislation (H.R. 3678) introduced by Committee Chairman James Howard (D-N.J.), whose bill is strongly supported by environmental interests. Many Water Act observers think it highly unlikely that the House will complete action on amendments in time for the summer pre-election recess.

On the Clean Air Act, the outcome is likely to be the same. The acid rain issue probably will continue to get the time and attention of Henry Waxman's (D-Cal.) Energy and Commerce Subcommittee on Health, but finding a politically viable solution to that ticklish issue will be extraordinarily difficult — even if the Reagan Administration does ultimately come out in support of "moderate" sulfur dioxide reductions, say in the range of four to six million tons annually east of the Mississippi River.

Even assuming a political solution on the acid rain issue, by no means a safe assumption, numerous differences would remain to be addressed, in particular concerning control of hazardous air pollutants under § 112. In addition, stationary source interests seem no less intent than ever — despite their repeated failings in the past — in seeking amendments to the controversial prevention of significant deterioration (PSD) program as it applies to areas meeting national ambient air quality standards. While few think industry PSD critics and their congressional allies have the votes to get their way, they could well block passage of amendments not addressing their priority concerns.

In addition to RCRA and the Clean Water and Air Acts, the House is likely to hold hearings on amendments to the Toxic Substances Control Act, Superfund, the Federal Insecticide, Fungicide, and Rodenticide Act, and on legislative proposals to compensate persons alleging health damage resulting from exposure to hazardous materials. While there may be simple reauthorizations in some cases, none of those laws or legislative proposals is likely to lead to comprehensive amendments in 1984.

In summary, RCRA amendments appear highly likely. Every other major EPA regulatory program, however, is likely to look the same in the statute books a year from now as it does today.