HAZ-MAT LEGISLATION: THE DEBATE GOES ON
CAPITOL CONNECTION
There’s lots of it. It moves through our town at all hours of the day and night. Some of it smells. A lot of it is dangerous. And you never know whom it may hurt or where it will end up being dumped. Yes, hazardousmaterials legislation can be bad stuff.
Here in Washington and in an increasing number of statehouses, legislators have caught a strong whiff of the issue. This year the smell will get even stronger, and by 1993 we expect haz-mat bills to choke lawmakers’ nostrils as only a controversial, emotional, and complex issue can.
“But wait!” you say. “Why now?” Hazardous materials have been stored, shipped, and used for a long time. Sure, there have been accidents, but nothing like Chernobyl or Bhopal. And didn’t Congress pass a law’ dealing with haz mats just before it adjourned last October? Sure, but when did any of that matter?
“Why now ?” is one of three questions worth asking about any public issue. The other two are Who cares? and What do they care about? To answer “Why now?” we need to deal with the other two questions first.
WHO CARES?
All of a sudden, everyone cares. Over the past few years the International Association of Fire Fighters has lobbied hard for the “Applegate bill,” an unusual, much-criticized piece of legislation named after its chief sponsor, Rep. Doug Applegate (D-OH). The bill would have created a computerized system to track each and every haz-mat shipment. A per-shipment fee would have kept the computer running.
Every day that Congress is in session legislation is introduced to satisfy somebody. Most of those bills get dumped in the legislative hopper, dumped on a subcommittee, then dumped altogether. Not Applegate’s. In spite of its many deficiencies—not the least of which was its sponsor, who seemed to know almost nothing about the haz-mat issue—the bill took on a life of its own. At one point it seemed that half of Congress—including Rep. Curt Weldon, chairman of the Congressional Fire Services Caucus-had cosponsored the bill.
Yet the Applegate bill caused bitter disputes in the fire service. While International Association of Fire Chiefs President Jim Estepp worked hard to gain support for the bill, the IAFC’s own haz-mat committee fought hard against it. The National Volunteer Fire Council (NVFC) was opposed to it, but union members poured into Washington to lobby for it.
Meanwhile, chemical industry lobbyists briefly turned their gaze from the hotly contested clean air amendments, the truckers and railroad workers shifted hostilities away from each other, and all beat up on Applegate. Somewhere along the line the National Governors Association slammed a fist on the bill.
No fewer than two House committees and one Senate committee waded in, and when the fat lady sang, she couldn’t remember Applegate’s tune. Bits and pieces of Applegate and a half dozen other measures were pulled together in classic, last-minute style. The result: a dream for industry and a nightmare for the fire service—preemption of state and local laws, almost no funding, and little recognition of the problems caused by hazmat storage and shipment nationwide. In the closing minutes before Congress adjourned late one night, the much debated amendments to the Hazardous Materials Transportation Act passed both the House and the Senate by voice vote. Within hours angry firefighters from California to Connecticut demanded to know what had happened.
IAFF President A1 Whitehead declared the bill a “good first step” but vowed to come back stronger and tougher than ever. The NVFC, in a historic move, passed a resolution condemning the bill that passed and called for a haz-mat summit meeting with Whitehead.
A spokesman for Nebraska Senator James Exon, whose Surface Transportation Subcommittee has jurisdiction over such matters, last August told firefighters from his own state that in 1990 “we’ll do something” and in 1991 “we’ll do something big.” Whether the good senator still feels that way, Applegate and “Apple Sauce” —as the final result might well be called—whet a lot of appetites.
But it won’t be fire service, chemical, or transportation lobbyists who turn haz-mat into everyday, front page news from our nation’s capital. Environmentalists have yet to weigh in. We’re not talking about global warming or spotted owls here. We’re talking about “in your face, in your backyard” politics—a green cloud headed for Shady Vale Elementary School, a river of purple sludge bubbling its way past your driveway. This is the issue environmentalists need, since it was rejected by voters in California and five other states last November.
Who cares? Everyone cares. And if everyone cares, so do journalists, trial lawyers, and politicians desperate for an emotional issue.
WHAT DO THEY CARE ABOUT?
The simple answer is “public safety,” but that term is so general and overused that it fails to describe the underlying issues—the real reasons people pay big bucks for lobbyists. Let’s look at the real issues.
Firefighter safety. The public sometimes may be at risk, but firefighters always are at risk. And untrained, poorly equipped firefighters are an endangered species when it comes to truly serious haz-mat incidents.
The Occupational Safety and Health Administration may require fire chiefs to adequately prepare firefighters to deal with incidents, but if there’s no money, there’s no way. A very small number of the nation’s 30,000 fire departments are properly prepared.
It’s hard to talk about occupational safety without talking about litigation. When people get hurt and die because of negligence—and the law often regards inadequate preparation of firefighters as negligence—other people get sued.
If the Applegate bill had passed, the shipment-by-shipment tracking system it would have created could have generated statistics that would make it possible to compare the safety records of individual chemical and shipping companies. These types of statistics inevitably show up in all of the worst places: on front pages of newspapers, in labor negotiations, in legislative hearings, and in court. Have you ever wondered why passions ran so high back when the bill was being debated?
Money. No one has any. The Feds can’t pay for what they bought 10 years ago. States and localities are broke. Chemical companies are spread thin. Trucking companies can’t afford fuel, and railroads have been a mess since President Garfield’s inauguration.
Training is expensive. Equipment is expensive (thousands of dollars apiece for protective gear that might be hopelessly contaminated after one use). Apparatus always comes with huge price tags.
Who will pay? Right now, local taxpayers foot most of the bill. But the writing is on the wall. User fees—one of 50 synonyms for the five-letter obscenity T-A-X-E-S—will be the answer, and industry will pay them. If you liked Applegate’s per-shipment fee, you’ll love the assortment of user fees Washington will dream up.
You might ask, What about a voluntary fund established by the chemical companies? They tried that in Missouri a few years back, and the “Show Me” state is still looking for the first dime. No, there won’t be anything “voluntary” about the funding when the time comes.
The environment. Environmentalists already have all the laws they need but little of what they want. In spite of their recent setbacks, they will push on in Washington and any other place they have an audience. They are smart, tough, and well-financed.
There used to be a time when a fire department would just wash that blue, shiny stuff down the sewer. As New York Mayor Ed Koch used to say, “Don’t even think about it.” The U.S. Environmental Protection Agency has the muscle right now to go after fire departments for sloppy haz-mat responses and contaminated fire academy sites. Nevertheless, the only thing that won’t be biodegradable in the ’90s will be the coming generation of environmental laws.
Jurisdiction. No one appreciates an old-fashioned turf battle, yet no one ever walks away from one. Right now the departments of Defense, Justice, Commerce, Transportation, Treasury, Interior, Energy, and Labor; the EPA; the Federal Emergency Management Agency; and probably the National Endowment for the Arts all plan to march in the haz-mat parade. Who gets to ride on the white horse at the front of the procession? Who gets to wield the shovel at the rear? Who gets to watch? Who might not get invited? This subissue may take longer than all of the rest to resolve.
WHY NOW?
That returns us to the first question: Why now? Because environmentalists are on a tear, Congress finally is listening to firefighter concerns, the more savvy fire service groups are beginning to pull together, last year’s political sideshow provided the warm-up act, and the haz-mat issue is like goat barbecue. In the words of the late Sam Ervin, the earthy South Carolina congressman best remembered for shutting the door on Watergate, “This is like goat barbecue. The more you chew it, the bigger it gets.”