Volume 156, No. 105 covering the 2nd Session of the 111th Congress (2009 - 2010) was published by the Congressional Record.
The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS” mentioning the Environmental Protection Agency was published in the Senate section on pages S5966-S5972 on July 15, 2010.
The publication is reproduced in full below:
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. JOHANNS:
S. 3593. A bill to require the Federal Government to pay the costs incurred by a State or local government in defending a State or local immigration law that survives a constitutional challenge by the Federal Government in Federal court; to the Committee on the Judiciary.
Mr. JOHANNS. Mr. President, I rise to discuss a bill I have introduced because I see a very unfair battle unfolding right in front of us. The battle I foresee is this: In one corner we have the enormous resources of the Federal Government; in the other corner, cities and States with very limited resources, especially in these economic times, but with a good-faith desire to protect their communities.
What I am speaking of today and what my legislation goes to is the Federal Government's use of litigation to insert itself into State and potentially local immigration laws.
I rise with a great deal of knowledge about this. As a former mayor and county commissioner, city council member and Governor, I know what it is like when the Federal Government swoops in and brings its power to bear on an issue. I have seen it from both sides, having also served as a member of the President's Cabinet. I know that when the resources of the Federal Government are used to weigh in with litigation, it is crushing. The administration can send in a team of lawyers and overwhelm the resources of a community or a State. Litigation brings with it a huge financial burden for cities and States. In fact, litigation can and does have a chilling effect on the local decisionmaking process, even if local leaders believe their action in good faith is appropriate and necessary.
I believe that is the exact reaction this administration is hoping to cause among communities and States across the Nation that are considering action on immigration issues.
In this case, I believe litigation is being used to send a warning to other communities, other States that might be considering taking action in this arena.
The administration's claim that the Federal Government has sole authority to enforce immigration laws because of the supremacy clause of the Constitution is, in fact, inconsistent with the President's own internal policies. Just last year, President Obama authored a memo, sent it out to all Federal departments and agencies, requiring serious and careful consideration when using Federal preemption of State laws.
In this memo, dated May 20, 2009, with the subject ``Preemption,'' the President stated:
The purpose of this memorandum is to state the general policy of my Administration that preemption of State law by executive departments and agencies should be taken only with full consideration of legitimate prerogatives of the States and with sufficient legal basis for preemption.
That seems clear. But the memo went on further to say:
Executive departments and agencies should be mindful that in our Federal system, the citizens of the several States have distinctive circumstances and values, and that in many instances it is appropriate for them to apply to themselves rules and principles that reflect those circumstances and values.
Then, finally, the President goes on to say:
It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social experimental experiments without risk to the rest of the country.
Mr. President, I ask unanimous consent that a copy of this memo be printed in the Record.
There being no objection, the material was ordered to be printed in the Record, as follows:
The White House,
Office of the Press Secretary,
May 20, 2009.
Memorandum for the Heads of Executive Departments and Agencies
Subject: Preemption
From our Nation's founding, the American constitutional order has been a Federal system, ensuring a strong role for both the national Government and the States. The Federal Government's role in promoting the general welfare and guarding individual liberties is critical, but State law and national law often operate concurrently to provide independent safeguards for the public. Throughout our history, State and local governments have frequently protected health, safety, and the environment more aggressively than has the national Government.
An understanding of the important role of State governments in our Federal system is reflected in longstanding practices by executive departments and agencies, which have shown respect for the traditional prerogatives of the States. In recent years, however, notwithstanding Executive Order 13132 of August 4, 1999 (Federalism), executive departments and agencies have sometimes announced that their regulations preempt State law, including State common law, without explicit preemption by the Congress or an otherwise sufficient basis under applicable legal principles.
The purpose of this memorandum is to state the general policy of my Administration that preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption. Executive departments and agencies should be mindful that in our Federal system, the citizens of the several States have distinctive circumstances and values, and that in many instances it is appropriate for them to apply to themselves rules and principles that reflect these circumstances and values. As Justice Brandeis explained more than 70 years ago,
``[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.''
To ensure that executive departments and agencies include statements of preemption in regulations only when such statements have a sufficient legal basis:
(1) Heads of departments and agencies should not include in regulatory preambles statements that the department or agency intends to preempt State law through the regulation except where preemption provisions are also included in the codified regulation.
(2) Heads of departments and agencies should not include preemption provisions in codified regulations except where such provisions would be justified under legal principles governing preemption, including the principles outlined in Executive Order 13132.
(3) Heads of departments and agencies should review regulations issued within the past 10 years that contain statements in regulatory preambles or codified provisions intended by the department or agency to preempt State law, in order to decide whether such statements or provisions are justified under applicable legal principles governing preemption. Where the head of a department or agency determines that a regulatory statement of preemption or codified regulatory provision cannot be so justified, the head of that department or agency should initiate appropriate action, which may include amendment of the relevant regulation.
Executive departments and agencies shall carry out the provisions of this memorandum to the extent permitted by law and consistent with their statutory authorities. Heads of departments and agencies should consult as necessary with the Attorney General and the Office of Management and Budget's Office of Information and Regulatory Affairs to determine how the requirements of this memorandum apply to particular situations.
This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
The Director of the Office of Management and Budget is authorized and directed to publish this memorandum in the Federal Register.
Barack Obama.
Mr. JOHANNS. So if the use of Federal power to preempt a State requires such an extremely high threshold, how can one reconcile that with the administration's decision to file a lawsuit?
My bill sends a message to the administration that it cannot use the crushing force and threat and reality of litigation to intimidate local officials or to scare them into inaction.
It would allow a State or a municipal government the ability, the right, to recover attorney's fees and other court costs associated with defending a Federal challenge of their immigration laws. In other words, this straightforward legislation just simply levels the playing field between the huge power of the Federal Government in one corner, as I said, and the right of local communities in States to pass laws to protect their citizens.
It carries this simple message to any administration: If you file a lawsuit and lose, cities and States will not face depleted resources as a result.
My bill ensures that when the Federal Government takes on communities in court, the reasons are pure and based in law or else the impact on our communities will be neutralized.
The administration should focus time and resources on what is the crux of this issue; that is, securing our borders and doing the job and enforcing existing immigration laws and not using litigation as a tool to send a message.
I encourage my colleagues to sign on and cosponsor this commonsense measure and level the playing field for communities when they are forced to defend themselves against the enormous, nearly unlimited power of the Federal Government.
______
By Mr. NELSON of Florida:
S. 3594. A bill to amend the Magnuson-Stevens Fishery Conservation and Management Act to mitigate the economic impact of the transition to sustainable fisheries on fishing communities, and for other purposes; to the Committee on Commerce, Science, and Transportation.
Mr. NELSON of Florida. Mr. President, I would like to speak about fishing, a very important special pastime and industry for the Nation. Fishing in Florida is a way of life for many. The small bait and tackle shops, the hotels, the restaurants, the charter boat captains, and the parents who want to see their children marvel when they pull a fish out of the ocean for the first time rely on being able to access the water. In fact, just last week, a Washington Post article traced the path of fish caught in the Florida Keys and off of Florida's East Coast to a Whole Foods market here in the DC area. And sadly, the Deepwater Horizon has shown us how much healthy, high-quality seafood comes out of the Gulf of Mexico every year.
In 2007, the Congress reauthorized the Magnuson-Stevens Fishery Conservation and Management Act. The Magnuson Act has certainly done some good things to ensure the long-term viability of our Nation's fishery resources. But some of the provisions of the law have had major unintended consequences in Florida.
I have spoken before about the need for robust science on the status of our oceans and our fishery stocks. In fact, most recently, I worked with Gulf Coast Senators to get funding in the Supplemental Appropriations bill for fisheries science in the Gulf of Mexico. But despite the potential influx of dollars, fisheries data for the Southeast in particular, is still sparse. This lack of data has lead to a crisis in confidence amongst many in the fishing community. Here is why.
The 2007 Magnuson-Stevens Reauthorization contained a 2010 deadline to end overfishing. But the justification for that deadline rested on two assumptions. First, that there would be recent and accurate stock assessments. Second, that there would be improved catch data. I think the National Oceanic and Atmospheric Administration is doing the best they can with available resources to gather this data. However, for years good data from recreational anglers has been a challenge but because of the changes to Magnuson-Stevens, regulations are coming out faster than the data used to support them.
Having that hard and fast 2010 deadline created a situation where the resource managers are left without options. This has led to closures of large geographic areas to all fishing with no end on the horizon. These closures have devastated small businesses that rely on fishing and left many frustrated that they cannot access the same waters that they always could.
Being a native Floridian, I know that many people develop a love for the ocean and a desire to protect it after they truly experience it by swimming, fishing off their boat, or listening to the waves. This access is a necessary component of conservation because the public gains a sense of ownership and this leads to a sense of responsibility.
That is why I am filing the Fishery Conservation Transition Act today. The bill will enable individuals, businesses, and communities to make a smooth transition while the science catches up by creating a phase-in period for Federal fishing regulations and requiring enhanced data collection in the interim. It also allows for economic assistance for those who are negatively impacted by management measures.
Others have proposed different solutions to this problem, but I believe that my bill is a targeted solution that gives resource managers options to allow access to the water in a way that will also achieve conservation goals.
There are provisions in the bill that require fishery managers to use the transition time wisely and research creative solutions to complex management issues, like how to manage multispecies fisheries in a way that protects the vulnerable stocks but still allows for access. This bill is also about jobs. Small businesses that rely on the fishing industry can ride out these difficult economic times without sacrificing the resource their businesses rely on.
I hope that my colleagues in the Senate will support this effort to provide a smooth transition to sustainable fisheries, healthy economic prospects for small businesses, access to the oceans and natural resources, and robust science.
Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.
There being no objection, the text of the bill was ordered to be printed in the Record, as follows:
S. 3594
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Fishery Conservation Transition Act''.
SEC. 2. TRANSITION TO SUSTAINABLE FISHERIES.
(a) In General.--Within 180 days after the close of fishing year 2010 (within the meaning given that term in the Magnuson-Stevens Fishery conservation and Management Act (16 U.S.C. 1802 et seq.), the Secretary of Commerce shall determine, with respect to each fishery for which a fishery management plan that meets the requirements of section 303(a)(15) of that Act (16 U.S.C. 1853(a)(15)) is in effect that contains a complete prohibition on the retention of stocks subject to overfishing within the fishery for the entire fishing season, whether the prohibition is sufficient to prevent or end overfishing for the stocks, or stocks undergoing overfishing, to which it applies.
(b) Remedial Action.--If the Secretary determines that the prohibition contained in such a fishery management plan is not sufficient to prevent or end overfishing for the stocks to which it applies, the Secretary may authorize retention of fish that are not undergoing overfishing within that fishery, notwithstanding that discard mortality of stocks for which retention is prohibited may be inconsistent with provisions on ending or preventing overfishing, if, within 90 days after a determination by the Secretary under subsection (a), the Regional Fishery Management Council with jurisdiction over the fishery implements--
(1) measures to minimize bycatch and bycatch mortality to the extent practicable;
(2) an enhanced data collection requirement, such as an electronic logbook data collection system, for recreational, for hire, and commercial fishers; and
(3) a program of on-board observers for charter, for-hire, and commercial fishers that will monitor and collect data on bycatch and bycatch mortality in multispecies fisheries with prohibitions on retention on one or more species in the fisheries; and
(4) in coordination with the Secretary, other measures to ensure accountability of the fishery, including those that will substantially contribute to addressing data gaps in stock assessments.
(c) Additional Requirements.--The Secretary shall take such action as may be necessary to ensure that, with respect to any stock subject to overfishing in a fishery to which a determination under subsection (b) applies--
(1) a monitoring and research program to monitor the recovery of the affected stocks of fish is implemented for the fishery within 1 year after the date of enactment of this Act;
(2) a stock assessment for the overfished species within the affected stocks of fish is initiated, taking into account relevant life history of the stock, within 6 months after the date on which the Secretary makes such a determination; and
(3) the Regional Fishery Management Council with jurisdiction over the affected fishery submits a report to Congress and the Secretary detailing a long-term plan for reducing discard mortality of the affected stocks of fish to which a determination under subsection (a) applies within 2 years after the date of enactment of this Act.
(d) Further Action Required.--If the Secretary determines that--
(1) the Regional Fishery Management Council with jurisdiction over a fishery has complied with the requirements of paragraphs (b) and (c), and
(2) the fishery management plan's prohibition on the retention of stocks subject to overfishing continues to be insufficient to prevent or end over-fishing for those stocks,
the Secretary shall take such action as may be necessary to end overfishing for the stocks to which the prohibition applies before the end of fishery year 2015.
SEC. 3. ECONOMIC ASSISTANCE PROGRAM.
(a) In General.--Section 208 of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 (16 U.S.C. 1891b) is amended--
(1) by striking ``and'' after the semicolon in subsection
(b)(6);
(2) by striking ``materia.'' in subsection (b)(7) and inserting ``materia; and'';
(3) by adding at the end of subsection (b) the following:
``(8) the economic assistance program under subsection
(f).'';
(4) by striking ``and'' after the semicolon in subsection
(c)(2)(A);
(5) by striking ``section.'' in subsection (c) (2)(B) and inserting ``section; and'';
(6) by adding at the end of subsection (c)(2) the following.:
``(C) fees collected under permit programs for a fishery significantly affected by a prohibition on the retention of stocks to end or prevent overfishing.''; and
(7) by adding at the end thereof the following:
``(f) Economic Assistance Program.--
`` (1) In general.--The Secretary shall establish an economic assistance program to assist recreational and commercial fishery participants, fishing industries, and fishing communities significantly affected by a prohibition on the retention of stocks to end or prevent overfishing or rebuild overfished stocks and use amounts in the Fund to provide such assistance.
``(2) Criteria for assistance.--In the administration of the program, the Secretary shall develop criteria for prioritizing economic assistance requests, including consideration of the conservation and management history of the fishery, the sustainability of conservation and management approaches, the magnitude of the economic impact of the retention prohibition, and community and social impacts.
``(3) Application process.--The Secretary shall develop an application process to determine eligibility for economic assistance under the program and shall consult with States whose recreational and commercial fishery participants, fishing industries, or fishing communities have been affected by the prohibition. Any person or community seeking assistance under the program shall submit an application at such time, in such manner, and containing such information and assurances as the Secretary may require.
``(4) State matching funds.--The Federal share of assistance provided under the program to recreational and commercial fishery participants, fishing industries, or fishing communities may not exceed 75 percent. Before granting assistance under the program, the Secretary shall consult with the State in which the recipient is located and request that the State provide matching funds. The Secretary may waive, in whole or in part, the matching requirement under this paragraph.''.
SEC. 4. AUTHORITY TO ACT.
(a) Clarification of Emergency Authority.--Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1855(c)) is amended by adding at the end the following:
``(4) For purposes of this section, an emergency is a situation that results from recent, unforeseen, or recently discovered circumstances that present serious conservation or management problems in the fishery, including ecological, economic, social, or public health interests. An emergency may include increasing or decreasing a catch limit, or modifying a time or area closure or retention prohibition in response to new science or stock assessment information, but only if such action is needed to address serious conservation or management problems in the fishery.''.
SEC. 5. FISHERY STUDIES AND REPORTS.
(a) Status of Fishery Report.--Section 304(e) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1854(e)) is amended--
(1) by inserting ``(A)'' before ``The Secretary'';
(2) by redesignating subparagraphs (A) and (B) as clauses
(i) and (ii); and
(3) by adding at the end the following:
``(B) In the review, the Secretary shall consider--
``(i) a stock assessment conducted pursuant to subsection
(c);
``(ii) an analysis of the local, regional, and national social and economic impacts on fishing communities and industries directly and indirectly related to the fishery; and
``(iii) fishery management measures to enhance the sustainability of stocks of fish that are overfished, and an evaluation of alternative management approaches that may be implemented to enhance such sustainability.
``(C) Stock assessment updates for each stock of fish that is overfished or undergoing overfishing shall be conducted at 2 year intervals, and a full stock assessment pursuant to subsection (c) shall be conducted no less frequently than once every 5 years.
``(D) The Secretary shall include a summary of reviews conducted under subparagraph (A) in the report required by paragraph (1) of this subsection. To the extent possible, the Secretary shall include in the report recommendations for actions that could be taken to encourage the sustainable management of stocks of fish listed in the Fish Stocks Sustainability Index.''.
(b) Assessment of Current Management Measures.--
(1) In general.--The Secretary of Commerce shall conduct a study, in cooperation with the National Academy of Sciences, to determine if current fishery management measures for stocks in a multi-species fishery yield the most productive use of marine resources while effectively conserving sustainable populations and a healthy marine ecosystem. The study shall include--
(A) the identification of the statutory and regulatory impediments to achieving the maximum sustainable yield from the entire fishery;
(B) the identification of fishery independent environmental stressors on the fishery;
(C) the economic value derived from the yield in the fishery; and
(D) alternative fishery management measures and technologies which would result in increased economic and harvest yields consistent with sound conservation.
(2) Report.--Within 180 days after the date of enactment of this Act, the Secretary shall transmit a report to the Senate Committee on Commerce, Science, and Transportation and the House of Representatives Committee on Natural Resources containing the Secretary's findings, conclusions, and recommendations.
SEC. 6. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to the Secretary of Commerce such sums as may be necessary to carry out the provisions of this Act and the amendments made by this Act.
______
By Mrs. HAGAN:
S. 3596. A bill to establish the Culture of Safety Hospital Accountability Study and Demonstration Program; to the Committee on Finance.
Mrs. HAGAN. Mr. President, today I am proud to introduce the Culture of Safety Hospital Accountability Act. This bill will test alternatives to the current, inflexible system to ensure that hospitals are meeting the highest health and safety standards for their patients.
Under the current system, the Centers for Medicare and Medicaid, or CMS, requires hospitals participating in Medicare and Medicaid to comply with Conditions of Participation--health and safety standards established by CMS for the protection of Medicare and Medicaid beneficiaries. CMS contracts with State agencies to perform inspections of hospitals, nursing homes, and other health care facilities to ensure compliance.
However, there are significant deficiencies in the current system. A major concern among hospitals is CMS' assignment of Immediate Jeopardy, which puts hospitals on a 23-day fast-track to losing their Medicare and Medicaid funding. Right now, the only remedy that CMS has when a hospital receives a citation is termination. There is no flexibility to consider the incident on a case-by-case basis--or even to consider whether the hospital self-reported and immediately corrected the incident. Moreover, current procedures fail to consider the substantial resources and efforts that hospitals are already investing in quality improvement and patient safety.
Take, for example, a hospital in my State, which last year got a 23-
day termination notice after they self-reported that one of their nurses had H1N1. The hospital immediately sent the nurse home and, as I mentioned, immediately reported the incident to CMS. Nevertheless, the hospital was required to undergo an inspection and submit the requisite plan of correction to CMS. The agency was not able to process the paperwork until day 22 of the 23-day notice, causing undue stress for the community as they wondered whether the hospital was going to be forced to close its doors.
In addition to the uncertainty for the hospital, the human resources required and costs incurred to implement this inflexible system are enormous. Once a hospital is cited as out of compliance with their Condition of Participation, the State CMS inspectors are required to survey the entire hospital and any other hospitals under the same CMS provider number. In the case of the hospital I just mentioned, it took State inspectors an entire week with 17 staff to survey their hospital system.
To address this inflexibility in the current system, I am introducing the Culture of Safety Hospital Accountability Act. This bill would do three things:
First, it would require the Secretary of Health and Human Services to study existing quality assurance and patient safety activities within hospitals and identify best practices that should be replicated.
Second, it would create a demonstration program among hospitals, State health care agencies, and HHS to promote and implement best practices for improving patient safety and quality of care. HHS would identify up to 6 States and not more than 24 hospitals to participate in a 3-year demonstration program.
Finally, the bill would authorize the Secretary of HHS to promulgate regulations modifying termination agreements regarding health and safety requirements with hospitals and critical access hospitals to better ensure compliance, prevent recurrence of violations, and improve internal structures and processes that address patient quality and safety.
Patient safety must be first and foremost, and it is not the intent of the demonstration project to keep CMS or State inspectors out of hospitals, nor to impair the remedies CMS needs to address quality issues. Instead, the bill will help to explore how CMS, State regulatory authorities, and hospitals can work collaboratively to address quality and safety issues in ways that will ensure the best quality of care for patients.
______
By Mr. CARDIN:
S. 3602. A bill to amend title 23, United States Code, to direct the Secretary to establish a comprehensive program to control and treat polluted stormwater runoff from federally funded highways and roads, and for other purposes; to the Committee on Environment and Public Works.
Mr. CARDIN. Mr. President, today I am proud to introduce legislation that will help prevent millions of gallons of pollution from entering our Nation's precious water resources. The season we are in makes my legislation particularly timely. Spring is one of the wettest times of year, and with every Spring shower polluted stormwater runoff washes a myriad of chemicals pollutants, sediment, debris, oil and grease, and other contaminates from our Nation's roads and highways into our lakes, rivers, streams, bays, and coastal waters.
Stormwater is the nation's largest source of water pollution. While rain itself contains air pollution particulates that are deposited in every drop, most stormwater pollution is picked up on the surface and carried off as runoff. Stormwater washes contaminants like oil, grease, heavy metals, nutrients, asbestos, sediments, road salts and other de-
icing agents, brake dust, and road debris from the millions of miles of America's roads and into storm drains that discharge into nearby waters. Almost all of this polluted stormwater is discharged without any treatment.
When rain falls on these hard, impervious surfaces it often has no where to go but down the channels created by curbs and retaining walls, into storm drains and into the nearest natural water body. According to research compiled by the National Oceanic & Atmospheric Administration's, NOAA, National Geophysical Data Center, the U.S. is covered by more than 112,600 square kilometers of impervious surfaces. That is a space larger than the State of Ohio. With 985,139 miles of federal aid highways stretching from every corner of the country, polluted highway runoff is no small problem facing our nation's waters.
The effects of polluted stormwater runoff are real. For example, the Anacostia River--Washington's ``other'' and often forgotten river--can be seen from the Capitol Dome as it flows out of Prince George's County, Maryland, and into the District and on to its confluence with the Potomac. Runoff from within the 176 square mile watershed of the Anacostia, most of which is in Maryland, but also includes the east side of DC and the entire Capitol complex, all makes its way into the Anacostia. The stormwater that enters the Anacostia is extremely polluted from the thousands of acres of road surfaces that cover the watershed, which exacerbates the incidence of combined sewer overflows and has impaired the Anacostia for many years. It is no coincidence that the U.S. Fish & Wildlife Service has found the Anacostia's bottom-
feeder catfish to have the highest incidence of liver tumors than any other population of catfish in the country. The cause of the tumors are the high levels of polycyclic aromatic hydrocarbons, a by-product of fuel combustion, that come from vehicle tailpipe emissions and are deposited on the road and in the air and then washed into the river with every shower or thunderstorm.
This is not a problem unique to Maryland or the Chesapeake Bay region, nor is it a problem unique to urban environments as opposed to rural environments. Polluted runoff is a problem that affects any watershed where impervious paved road and highway surfaces have altered the natural hydrology of a watershed. Over time, Federal highway policy has come to recognize the drastic impacts highways and surface transportation can have on the environment and on water quality. Title 23 of the U.S. Code states: ``transportation should play a significant role in promoting economic growth, improving the environment, and sustaining the quality of life'' through the use of ``context sensitive solutions.'' The Intermodal Surface Transportation Efficiency Act, ISTEA, authorized using transportation enhancement funds for
``environmental mitigation to address water pollution due to highway runoff.'' It's important to note, however, that this is just one of 12 types of eligible enhancement projects and only 1.1 percent of enhancement project funds have gone toward environmental mitigation projects since 1992.
In 2008, at the request of the House Transportation & Infrastructure Committee, the Government Accountability Office issued a report examining key issues and challenges that need to be addressed in the next reauthorization of the transportation bill. That report highlighted the clear link between transportation policy and the environment. Taking a policy approach to require that the planning, design, and construction of highways are done in an environmentally responsible manner, with an eye toward mitigating the water quality impacts highways have on our Nation's water resources, will help address this issue and better meet our Nation's transportation goals. This legislation also helps advance the October 5, 2009, Executive Order affirming that Federal policy and Federal agencies shall
``conserve and protect water resources through efficiency, reuse, and stormwater management; eliminate waste, recycle, and prevent pollution; and leverage agency acquisitions to foster markets for sustainable technologies and environmentally preferable materials, products and services.''
The approach my legislation takes to mitigate polluted highway runoff is through the implementation of a minimum design standard, developed by the United States Department of Transportation, that requires the maintenance or restoration of the pre-development hydrology of a Federal-aid highway project site. This same approach was made law by the Energy Independence & Security Act of 2007 for the development of new Federal buildings and facilities.
My bill would require that all significant Federal highway projects must be planned and designed ``to maintain or restore, to the maximum extent technically feasible, the predevelopment hydrology of the project site with regard to the temperature, rate, chemical composition, volume and duration of flow'' of stormwater. This would be achieved by approaches that avoid and minimize alteration of natural features and hydrology and maximize the use of onsite pollution control measures using existing terrain and natural features.
My bill also recognizes that geography and other physical characteristics of the land may not always allow on-site treatment of polluted highway runoff. When conditions are impracticable my legislation would allow for an ``appropriate off-site runoff pollution mitigation program'' within the watershed of a Federal-aid highway project site that can protect against the water quality impacts of the project.
The Clean Water Act requires that we protect the waters of the United States. As with most pollution abatement strategies, preventing stormwater pollution is cheaper, more effective, and easier to implement than trying to clean up and remediate the problem after the contamination has occurred.
Not addressing stormwater pollution at its source just kicks the proverbial can down the road for someone else's attention. When water resources are contaminated by polluted highway runoff, mitigating the pollution, which is a preventable discharge in the first place, should not be the responsibility of local governments, wastewater treatment facilities, or drinking water utilities.
Water pollution has many sources and our Nation's highways produce a tremendous volume of contaminated stormwater. Time and time again, experience has taught us that addressing pollution at its source is the most effective means of abating pollution. It is time we applied this principle to our Nation's Federal-aid highways. I urge my colleagues to support my legislation and help move our country closer to meeting the goals of the Clean Water Act and the goals of our national transportation policy.
Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.
There being no objection, the text of the bill was ordered to be printed in the Record, as follows:
S. 3602
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Safe Treatment of Polluted Stormwater Runoff Act'' or the ``STOPS Runoff Act''.
SEC. 2. FEDERAL-AID HIGHWAY RUNOFF POLLUTION MANAGEMENT
PROGRAM.
(a) In General.--Chapter 3 of title 23, United States Code, is amended by adding at the end the following:
``Sec. 330. Federal-aid highway runoff pollution management program
``(a) Establishment.--The Secretary shall establish a Federal-aid highway runoff pollution management program to ensure that covered projects are constructed in accordance with minimum standards designed to protect surface and ground water quality.
``(b) Project Approval.--The Secretary may approve a covered project of a State under section 106 only if the State provides assurances satisfactory to the Secretary that the State will construct the project in accordance with the minimum standards described in subsection (c).
``(c) Minimum Standards.--The following minimum standards shall apply to the construction of covered projects to maintain or restore, to the maximum extent technically feasible, the predevelopment hydrology of the project site with regard to the temperature, rate, chemical composition, volume and duration of flow:
``(1) Avoid and minimize alteration of natural features and hydrology and maximize use of pollution source control measures that utilize existing terrain and natural features and reduce chemical introduction to reduce creation of pollution on the project site.
``(2) Maximize capture of highway runoff pollution on the project site through pretreatment and treatment, including environmental site design techniques and other control measures that promote evapotransporation and infiltration.
``(3) Prevent any remaining highway runoff pollution not addressed under paragraphs (1) and (2) to the maximum extent practicable by implementing one or more of the following control measures selected through a watershed-based environmental management or equivalent approach:
``(A) Pretreatment and treatment of runoff with appropriate control measures on the project site.
``(B) Discharge of highway runoff pollution directly to an off-site control measure under the control of the State with documented capacity to provide functionally and quantitatively equivalent management of runoff pollution to that required to achieve the minimum standards of this subsection for the design life of the project.
``(C) If the control measures in subparagraphs (A) and (B) are found impracticable based on site conditions or other appropriate factors, and an appropriate off-site runoff pollution mitigation program is in place, contribution to a mitigation program that will produce functionally and quantitatively equivalent management of runoff pollution to that required to achieve the minimum standards. Under this subparagraph, priority shall be given to off-site control measures that address the impacts of runoff pollution to waterways that are listed as impaired in the same or adjacent 8-digit Hydrologic Unit Code as the project site.
``(d) Guidance.--
``(1) In general.--Not later than 180 days after the date of enactment of this section, the Secretary, with the concurrence of the Administrator of the Environmental Protection Agency, shall publish guidance to assist States in complying with the requirements of this section.
``(2) Contents of guidance.--The guidance shall include guidelines for the establishment of State processes and programs that will be used to assist in managing highway runoff pollution from covered projects in accordance with the minimum standards described in subsection (c), including--
``(A) guidance to help States integrate the planning, selection, design, and long-term operation and maintenance of control measures consistent with the minimum standards in the overall project planning process;
``(B) creation of a watershed-based environmental management approach to assist projects in achieving consistency with the minimum standards;
``(C) guidelines for the development and utilization of off-site runoff pollution mitigation programs to achieve compliance with the minimum standards; and
``(D) provisions for State inspection, monitoring, and reporting to document State compliance and project consistency with this section.
``(e) Limitation on Statutory Construction.--Nothing in this section shall be construed to affect the applicability of any provision of Federal, State, or local law that is more stringent than the requirements of this section.
``(f) Reporting.--The Secretary shall require each State to report annually to the Secretary on the highway runoff pollution reductions achieved for covered projects carried out by the State after the date of enactment of this section.
``(g) Definitions.--In this section, the following definitions apply:
``(1) Control measure.--The term `control measure' means a program, structural or nonstructural management practice, operational procedure, or policy on or off the project site that is intended to control, reduce, or prevent highway runoff pollution.
``(2) Covered project.--The term `covered project' means a project carried out under this title for--
``(A) construction of a new highway or associated facility;
``(B) construction of a Federal-aid highway runoff control measure retrofit; or
``(C) construction of a significant Federal-aid highway improvement.
``(3) Federal-aid highway runoff control measure retrofit.--The term `Federal-aid highway runoff control measure retrofit' means the installation or modification of a control measure for highway runoff pollution serving a Federal-aid highway or associated facility originally constructed before the date of enactment of this section.
``(4) Highway runoff pollution.--The term `highway runoff pollution' means in relation to a Federal-aid highway, associated facility, or control measure retrofit projects one or more of the following--
``(A) a discharge of sediment, metals, bacteria, chemicals, nutrients, or oil and grease in runoff; or
``(B) a discharge of peak flow rate, water temperature, and volume of runoff that exceeds predevelopment amounts generated from a Federal-aid highway, associated facility, or control measure retrofit project that violates the water quality standards of the receiving water set by the Federal Water Pollution Control Act (33 U.S.C. 125 et seq.) and related State programs.
``(5) Significant federal-aid highway improvement.--The term `significant Federal-aid highway improvement' means the rehabilitation, reconstruction, reconfiguration, renovation, or major resurfacing of an existing Federal-aid highway or associated facility that disturbs 5 or more acres of land.
``(6) Watershed-based environmental management approach.--The term `watershed-based environmental management approach' means an approach under which--
``(A) the selection of solutions that prevent or minimize the environmental impact of an individual project is made within the broader context of the environmental protection and restoration goals of any watershed that drains the project site, rather than selecting solutions solely based on site level considerations; and
``(B) priority consideration is given to--
``(i) protection of drinking water supplies;
``(ii) protection and restoration of waterways listed by a State as impaired in accordance with section 303(d) of the Federal Water Pollution Control Act (33 U.S.C. 1313(d));
``(iii) preservation of aquatic ecosystems and fisheries; and
``(iv) cost-effective expenditure of Federal funds.''.
(b) Effective Date.--The provisions of this legislation will be effective and applicable to construction of Federal-Aid Highway projects as defined in subsection (g)(2) 1 year after enactment.
(c) Clerical Amendment.--The analysis for chapter 3 is amended by adding at the end the following:
``330. Federal-aid highway runoff pollution management program.''.
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By Ms. CANTWELL:
S. 3603. A bill to amend the Oil Pollution Act of 1990 to establish the Federal Oil Spill Research Committee and to amend the Federal Water Pollution Control Act to include in a response plan certain planned and demonstrated investments in research relating to discharges of oil and to modify the dates by which a response plan is required to be updated; to the Committee on Commerce, Science, and Transportation.
Mr. President, over 21 years ago the tanker Exxon Valdez, en route from Valdez, Alaska, to Los Angeles, failed to turn back into the shipping lane after detouring to avoid ice. At 12:04 a.m., it ran aground on Bligh Reef in Prince William Sound.
Within six hours, the Exxon Valdez spilled 11 million gallons of crude oil into the Sound's pristine waters and wrote itself into the history books as--at that time--the worst oil spill ever in U.S. waters. Eventually, oil covered 11,000 square miles of ocean.
The environmental and economic damage is impossible to both fathom and assess; countless seabirds, marine mammals, and fish were killed. As a result, companies like the Chugach Alaska Corporation went bankrupt. There were huge losses to recreational sports, fisheries, and tourism. And 21 years later there is still oil in the area.
Today, we are re-living a similar nightmare--only this time on an even larger scale. The BP oil spill in the Gulf of Mexico, triggered by the explosion of the Deepwater Horizon oil rig and the failure of its safety systems, has shattered all previous records as the single largest marine oil spill in our Nation's history. Even today, oil continues to gush from the uncapped well, furthering the devastation to the Gulf of Mexico's environment and economy.
The Exxon Valdez showed us just how unprepared we were in 1989, and the BP oil spill is showing us today how unprepared we are in 2010. While the Oil Pollution Act of 1990 has been successful in achieving many of its policy goals, the BP oil spill is proving to us that oil spill response technology remains largely stagnant, and that our response infrastructure remains inadequate.
This is why I rise today to introduce the Oil Spill Technology and Research Act.
This legislation is designed to address the massive gap in oil spill research and development that has contributed to our inability to respond to the BP oil spill. It will: put mechanisms in place that will foster continuous research and development on oil spill response methods and technologies; provide an incentive structure for translating new technologies from ideas into reality; and continuously add new layers to our oil spill safety net.
This is an important step in the right direction to improve our Nation's ability to contain and clean up oil spills in the future.
It is a proclamation that we are not going to allow complacency back at the wheel, nor are we going to allow politics to get in the way of doing what is right.
Twenty-one years ago we saw the devastating costs of complacency, and we are living that nightmare again today. It is up to us to ensure that this country's environment, economy, and people are protected with the greatest rigor that we can muster. Our oceans, coasts, and citizens deserve nothing less.
Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.
There being no objection, the text of the bill was ordered to be printed in the Record, as follows:
S. 3603
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Oil Spill Technology and Research Act of 2010''.
SEC. 2. FEDERAL OIL SPILL RESEARCH COMMITTEE.
(a) In General.--Section 7001 of the Oil Pollution Act of 1990 (33 U.S.C. 2761) is amended to read as follows:
``SEC. 7001. FEDERAL OIL SPILL RESEARCH COMMITTEE.
``(a) Establishment.--There is established a committee, to be known as the `Federal Oil Spill Research Committee'
(referred to in this section as the `Committee').
``(b) Membership.--
``(1) Composition.--The Committee shall be composed of--
``(A) at least 1 representative of the National Oceanic and Atmospheric Administration;
``(B) at least 1 representative of the Coast Guard;
``(C) at least 1 representative of the Environmental Protection Agency; and
``(D) at least 1 representative of each of such other Federal agencies as the President considers to be appropriate.
``(2) Chairperson.--The Under Secretary of Commerce for Oceans and Atmosphere (referred to in this section as the
`Under Secretary') shall designate a Chairperson from among members of the Committee who represent the National Oceanic and Atmospheric Administration.
``(3) Meetings.--At a minimum, the members of the Committee shall meet once each quarter.
``(c) Duties of the Committee.--
``(1) Research.--The Committee shall--
``(A) coordinate a comprehensive program of oil pollution research, technology development, and demonstration among the Federal agencies, in cooperation and coordination with industry, institutions of higher education, research institutions, State governments, tribal governments, and other countries, as the Committee considers to be appropriate; and
``(B) foster cost-effective research mechanisms, including the joint funding of research.
``(2) Reports on current state of oil discharge prevention and response capabilities.--
``(A) In general.--Not later than 180 days after the date of enactment of the Oil Spill Technology and Research Act of 2010, the Committee shall submit to Congress a report on the state of oil discharge prevention and response capabilities that--
``(i) identifies current research programs conducted by governments, universities, and corporate entities;
``(ii) assesses the current status of knowledge on oil pollution prevention, response, and mitigation technologies;
``(iii) establishes national research priorities and goals for oil pollution technology development relating to prevention, response, mitigation, and environmental effects;
``(iv) identifies regional oil pollution research needs and priorities for a coordinated program of research at the regional level developed in consultation with the State and local governments and Indian tribes;
``(v) assesses the current state of discharge response equipment, and determines areas in need of improvement, including with respect to the quantity, age, quality, and effectiveness of equipment, or necessary technological improvements;
``(vi) assesses--
``(I) the current state of real-time data available to mariners, including data on water level, currents, and weather (including predictions); and
``(II) whether a lack of timely information increases the risk of oil discharges; and
``(vii) includes such other information or recommendations as the Committee determines to be appropriate.
``(B) 5-year updates.--Not later than 5 years after the date of enactment of the Oil Spill Technology and Research Act of 2010, and every 5 years thereafter, the Committee shall submit to Congress a report updating the information contained in the previous report submitted under subparagraph
(A).
``(d) Research and Development Program.--
``(1) In general.--In carrying out the duties of the Committee under subsection (c)(1), the Committee shall establish a program to conduct oil pollution research and development.
``(2) Program elements.--The program established under paragraph (1) shall provide for research, development, and demonstration of new or improved technologies and methods that are effective in preventing, detecting, or responding to, mitigating, and restoring damage from oil discharges and that protect the environment, including each of the following:
``(A) High priority research areas described in the reports under subsection (c)(2).
``(B) Environmental effects of acute and chronic oil discharges on coastal and marine resources, including impacts on protected areas and protected species.
``(C) Long-term effects of major discharges and the long-term cumulative effects of smaller endemic discharges.
``(D) New technologies to detect accidental or intentional overboard discharges.
``(E) Response, containment, and removal capabilities, such as improved booms, oil skimmers, and storage capacity.
``(F) Oil discharge risk assessment methods, including the identification of areas of high risk and potential risk reductions for the prevention of discharges.
``(G) Capabilities for predicting the environmental fate, transport, and effects of oil discharges, including prediction of the effectiveness of discharge response systems to contain and remove oil discharges.
``(H) Methods to restore and rehabilitate natural resources and ecosystem functions damaged by oil discharges.
``(I) Research and training, in consultation with the National Response Team, to improve the ability of industry and the Federal Government to remove an oil discharge quickly and effectively.
``(J) Oil pollution technology evaluation.
``(K) Any other priorities identified by the Committee.
``(3) Implementation plan.--
``(A) In general.--Not later than 180 days after the date of submission of the report under subsection (c)(2)(A), the Committee shall submit to Congress a plan for the implementation of the program required by paragraph (1).
``(B) Assessment by national academy of sciences.--The Chairperson of the Committee, acting through the Administrator of the National Oceanic and Atmospheric Administration, shall enter into an arrangement with the National Academy of Sciences under which the National Academy of Sciences shall--
``(i) provide advice and guidance in the preparation and development of the plan required by subparagraph (A); and
``(ii) assess the adequacy of the plan as submitted, and submit a report to Congress on the conclusions of the assessment.
``(e) Grant Program in Support of Research and Development Program.--
``(1) In general.--The Under Secretary of Commerce shall manage a program of competitive grants to universities or other research institutions, or groups of universities or research institutions, for the purposes of conducting the program established under subsection (d).
``(2) Applications and conditions.--In conducting the program, the Under Secretary--
``(A) shall establish a notification and application procedure;
``(B) may establish such conditions and require such assurances as are appropriate to ensure the efficiency and integrity of the grant program; and
``(C) may provide grants under the program on a matching or nonmatching basis.
``(f) Advice and Guidance.--
``(1) In general.--The Committee shall accept comments and input from State and local governments, Indian tribes, industry representatives, and other stakeholders in carrying out the duties of the Committee under subsection (c).
``(2) Advisory council.--The Committee may establish an Advisory Council consisting of nongovernment experts and stakeholders for the purpose of providing guidance to the Committee on matters under this section.
``(g) Facilitation.--The Committee may develop joint partnerships or enter into memoranda of agreement or memoranda of understanding with institutions of higher education, States, and other entities to facilitate the research program required by subsection (d).
``(h) Annual Reports.--Not later than 1 year after the date of enactment of the Oil Spill Technology and Research Act of 2010, and annually thereafter, the Chairperson of the Committee shall submit to Congress a report that describes--
``(1) the activities carried out under this section during the preceding fiscal year; and
``(2) the activities that are proposed to be carried out under this section for the fiscal year during which the report is submitted.
``(i) Authorization of Appropriations.--There are authorized to be appropriated to the Secretary of Commerce to carry out this section--
``(1) $200,000 for fiscal year 2010, to remain available until expended, for use in entering into arrangements with the National Academy of Sciences and for paying other expenses incurred in developing the reports and research program under this section; and
``(2) $2,000,000 for each of fiscal years 2010 through 2012, to remain available until expended.''.
(b) Termination of Authority of Interagency Committee.--
(1) In general.--The Interagency Coordinating Committee on Oil Pollution Research established under section 7001 of the Oil Pollution Act of 1990 (33 U.S.C. 2761) (as in effect on the day before the date of enactment of this Act), and all authority of that Committee, terminate on the date of enactment of this Act.
(2) Funding.--Any funds made available for the Interagency Coordinating Committee on Oil Pollution Research described in paragraph (1) and remaining available as of the date of enactment of this Act shall be transferred to and available for use by the Federal Oil Spill Research Committee (as established by the amendment made by subsection (a)), without further appropriation or fiscal year limitation.
SEC. 3. RESPONSE PLAN UPDATE REQUIREMENT.
Section 311(j)(5) of the Federal Water Pollution Control Act (33 U.S.C. 1321(j)(5)) is amended--
(1) in subparagraph (D)--
(A) by striking clause (v) and inserting the following:
``(v)(I) be updated at least every 5 years;
``(II) require the use of the best available technology and methods to contain and remove, to the maximum extent practicable, a worst-case discharge (including a discharge resulting from fire or explosion), and to mitigate or prevent a substantial threat of such a discharge; and
``(III) be resubmitted for approval upon each update (which shall be considered to be a significant change to the response plan) under this clause;'';
(B) in clause (vi), by striking the period at the end and inserting ``; and''; and
(C) by adding at the end the following:
``(vii) include planned and demonstrated investments in research relating to oil discharges, risk assessment, and development of technologies for oil discharge response and prevention.''.
(2) by adding at the end the following:
``(J) Technology standards.--The Coast Guard may establish requirements and issue guidance for the use of best available technology and methods under subparagraph (D)(v), which technology and methods shall be based on performance metrics and standards, to the maximum extent practicable.''.
SEC. 4. OIL DISCHARGE TECHNOLOGY INVESTMENT.
(a) In General.--The Secretary of the Department in which the Coast Guard is operating (referred to in this section as the ``Secretary'') shall establish a program for the formal evaluation and validation of oil pollution containment and removal methods and technologies.
(b) Approval.--
(1) In general.--The program shall establish a process for new methods and technologies to be submitted, evaluated, and gain validation for use in responses to discharges of oil and inclusion in response plans.
(2) Consideration of capability.--Following each validation of a method or technology described in paragraph (1), the Secretary shall consider whether the method or technology meets a performance capability warranting designation of a new standard for best available technology or methods.
(3) Lack of validation.--The lack of validation of a method or technology under this section shall not preclude--
(A) the use of the method or technology in response to a discharge of oil; or
(B) the inclusion of the method or technology in a response plan.
(c) Technology Clearinghouse.--Each technology and method validated under this section shall be included in the comprehensive list of discharge removal resources maintained through the National Response Unit of the Coast Guard.
(d) Consultation.--In carrying out this section, the Secretary shall consult with--
(1) the Secretary of the Interior;
(2) the Administrator of the National Oceanic and Atmospheric Administration;
(3) the Administrator of the Environmental Protection Agency; and
(4) the Secretary of Transportation.
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