[Congressional Record Volume 143, Number 24 (Friday, February 28, 1997)]
[Senate]
[Pages S1796-S1799]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. AKAKA (for himself and Mr. Inouye):
  S. 382. A bill to amend chapter 3 of title 28, United States Code, to 
provide for the appointment in each Federal judicial circuit court of 
appeals, of at least one resident of each State in such circuit, and 
for other purposes; to the Committee on the Judiciary.


                 THE JUDICIARY APPOINTMENTS ACT OF 1997

  Mr. AKAKA. Mr. President, I am pleased to reintroduce the Fairness in

[[Page S1797]]

Judiciary Appointments Act of 1997, with my colleague, the senior 
Senator from Hawaii. Our measure would require the appointment of 
judges on the circuit court of appeals from all States in the circuit. 
This legislation is identical to S. 1320, which was introduced in 1995.
  This measure will require no new appropriations and no additional 
spending authority. It would, however, ensure fairness in the 
appointment of circuit court judges and remove political pressure in 
weighing the nomination of a person from a more populated State over an 
individual from a less populated State.
  Our bill would require that judges on the circuit court of appeals be 
appointed from every State in the circuit. The impact of the measure on 
fairness and justice would be long-term and far-reaching. It will 
assure that all citizens of every State in the Nation are represented 
by an active circuit judge on each of the circuits.
  I am disappointed that the past three administrations have failed to 
nominate a circuit court judge from Hawaii, which is part of the ninth 
circuit. Hawaii's only active judge serves as a senior judge since his 
retirement over 10 years ago. There are currently 8 vacancies on the 
court out of 28 seats. Two additional judges are expected to retire 
this spring, which will mean that a full one-third of the seats on the 
ninth circuit court will be vacant.
  I will not go into the inability of the Senate to act on judicial 
appointments in the last Congress at this time. However, I will state 
for my colleagues that I am hopeful we will eliminate the existing 
backlog of vacancies at all levels of the Federal court system in a 
bipartisan manner.
  It is my firm belief that legal decisions should be based on the law, 
not representation. But representation would add to the credibility and 
legitimacy of the Federal appellate courts and the decisions they 
render. I urge my colleagues to support the Fairness in Judiciary 
Appointment Act of 1997.
  Mr. President, I ask consent that my bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 382

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. STATE RESIDENCY OF JUDGES OF FEDERAL COURTS OF 
                   APPEALS.

       (a) In General.--Section 44(c) of title 28, United States 
     Code, is amended--
       (1) in inserting ``(1)'' after ``(c)''; and
       (2) by adding at the end thereof the following new 
     paragraph:
       ``(2) In each circuit (other than the Federal judicial 
     circuit) there shall be at least one circuit judge in regular 
     active service appointed from the residents of each State in 
     that circuit.''.
       (b) Appointments.--As vacancies occur and judgeships are 
     created for Federal circuit judges, the President shall make 
     appointments under section 44(a) of title 28, United States 
     Code, in a manner to meet the requirements of subsection 
     (c)(2) of such section (as added by subsection (a) of this 
     section) at the earliest practical date.
                                 ______
                                 
      By Mr. D'AMATO:
  S. 383. A bill to require the Director of the Federal Emergency 
Management Agency to provide funds for compensation for expenses 
incurred by the State of New York, Nassau County and Suffolk County, 
NY, and New York City, NY, as a result of the crash of flight 800 of 
Trans World Airlines; to the Committee on Environment and Public Works.


            FEDERAL EMERGENCY MANAGEMENT AGENCY LEGISLATION

 Mr. D'AMATO. Mr. President, I introduce legislation which will 
require the Director of the Federal Emergency Management Agency [FEMA] 
to compensate the many State, county, and local governments throughout 
New York that assisted Federal officials in the rescue and salvage 
operations immediately following the crash of Trans World Airlines 
Flight 800.
  As you will recall Mr. President, on July 17, 1996, TWA flight 800 
crashed into Federal waters off the coast of Long Island, NY killing 
all 230 persons aboard. Immediately following the incident a vast army 
of rescuers set forth from the counties of Nassau and Suffolk, Long 
Island, and the city of New York to offer their assistance. Many of the 
rescuers were ordinary citizens. Others were from U.S. Coast Guard 
stations located within the area. However, the vast majority of the 
rescuers came from the many State, county, and local municipalities 
throughout the region. Braving darkness and rolling seas these heroes 
set forth upon the Atlantic Ocean, in many cases in small boats piloted 
by area residents and fishermen to help persons unknown to them.
  In the hours and days immediately following the tragic crash, divers 
from the city of New York, and the New York State Police, working with 
Navy and Coast Guard officials, began their search for survivors. 
Braving frigid waters, darkness and the hazards created by the wreckage 
itself they soon realized the enormity of the loss of life. They then 
began the undaunted task of recovering the bodies of those who had lost 
their lives in the crash. These divers labored around the clock for 
weeks on end with only a few hours of fitful sleep performing this most 
sensitive of tasks. The men and women who labored under these harshest 
of conditions are to be commended.
  While efforts continued under the water, the air above the crash site 
was filled with activity. National Guard helicopters stationed in New 
York were requested to transport Federal officials to and from the 
crash site and to assist in recovery operations.
  On land, National Guard engineers provided cranes to lift large 
pieces of the aircraft. These pieces were eventually loaded upon 
National Guard trucks in Brooklyn, NY, and transported to a hangar at 
Calverton, Long Island where they were reassembled. National Guard 
units provided security at the Brooklyn and Calverton facilities. 
National Guard units also provided generators to provide desperately 
needed lighting to assist in the recovery process.
  Additionally, the New York State Department of Transportation 
provided steel and lumber in support of the National Guard's recovery 
efforts. The New York State Department of Corrections provided mobile 
homes to provide temporary housing for U.S. Navy and Coast Guard 
officials. New York State, county, and local police officials assisted 
the FBI with the collection and processing of large pieces of the 
aircraft. These same officials also provided security at the reassembly 
facility at Calverton. In probably one of the most sensitive and 
delicate of efforts, members of the Suffolk County Medical Examiners 
Office worked tirelessly and expeditiously in the identification of the 
victims of the crash in order that they might be returned to their 
loved ones. These are only a few of the examples of the assistance that 
was provided by and continues to this date to be provided by the 
citizens of the State of New York to Federal authorities.
  New York State, New York City, Suffolk and Nassau Counties offered 
their assistance in this emergency without hesitation. However, the 
magnitude of the rescue and recovery operation imposed tremendous 
financial strains on these entities. To date, nearly $13 million has 
been spent by State, city, and county governments and this total could 
very well increase as the final accountings are tallied. The 
legislation that I am introducing today will provide financial 
compensation to these entities for the costs they incurred in 
responding to and assisting in the efforts to retrieve the bodies and 
wreckage of TWA flight 800. This legislation will require that all 
requests for restitution be forwarded directly to the Governor of New 
York who will in turn submit a request to the Federal Emergency 
Management Agency. Total compensation would be capped at $20 million.
  Mr. President, we all commend the efforts of the State of New York, 
the city of New York, and Nassau and Suffolk Counties and the many 
thousands of men and women who offered their assistance in this time of 
need. I believe that this is the right thing to do to provide fair 
compensation to those entities that responded to this extraordinary and 
tragic incident. I encourage my colleagues to cosponsor this measure 
and I urge its prompt consideration.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

[[Page S1798]]

                                 S. 383

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. PAYMENT TO THE STATE OF NEW YORK.

       (a) In General.--Subject to the limitation under subsection 
     (b), the Director of the Federal Emergency Management Agency 
     (referred to in this section as the ``Director'') shall pay, 
     from funds available to the Director, to the State of New 
     York an amount determined by the Director, in consultation 
     with the units of government referred to in paragraphs (1) 
     through (3), to be equal to the aggregate amount of the 
     expenses incurred (but not reimbursed by the Federal 
     Government under other law) as a result of the crash of 
     flight 800 of Trans World Airlines on July 17, 1996, off the 
     coast of Long Island, New York, by--
       (1) the State of New York;
       (2) Nassau County and Suffolk County, New York; and
       (3) New York City, New York.
       (b) Limitation.--The total amount paid by the Director to 
     the State of New York under subsection (a) shall not exceed 
     $20,000,000.

     SEC. 2. DISTRIBUTION OF FUNDS.

       (a) Distribution by State of New York.--The Governor of the 
     State of New York (in this section referred to as the 
     ``Governor'') shall use the amount paid to the State of New 
     York under section 1--
       (1) as reimbursement for expenses incurred by the State as 
     a result of the crash referred to in section 1(a); and
       (2) to make payments to the units of government specified 
     in paragraphs (2) and (3) of section 1(a).
       (b) Requests for Compensation.--
       (1) In general.--
       (A) Solicitation of requests.--The Governor shall solicit 
     requests for compensation for expenses referred to in section 
     1(a) from the units of government referred to in subsection 
     (a)(2).
       (B) Requirements for requests.--Each request made under 
     this subsection shall--
       (i) be in writing;
       (ii) contain appropriate documentation; and
       (iii) be submitted in such form, and in such manner, as the 
     Governor may specify.
       (2) Delegation of authority.--If the Governor determines 
     that the review of the requests by the Director of Emergency 
     Management of the State of New York is appropriate, the 
     Governor may delegate the review of the requests to the 
     Director of Emergency Management.
       (3) Review of requests.--The Governor or the Director of 
     Emergency Management, as the case may be, shall review each 
     request submitted under paragraph (1).
       (4) Payments.--If, on completion of a review under 
     paragraph (3)--
       (A) the Governor determines that a request is appropriate 
     and accurate, the Governor shall make a payment under 
     subsection (a)(2) to the unit of government that submitted 
     the request; or
       (B) the Director of Emergency Management determines that a 
     request is appropriate and accurate, the Director of 
     Emergency Management shall inform the Governor of the results 
     of the review, and the Governor shall make a payment under 
     subsection (a)(2) to the unit of government that submitted 
     the request.
                                 ______
                                 
      By Mr. CONRAD:
  S. 384. A bill to amend the Solid Waste Disposal Act to allow States 
to regulate the disposal of municipal solid waste generated outside the 
State; to the Committee on Environment and Public Works.


                  solid waste disposal act amendments

 Mr. CONRAD. Mr. President, today I introduce legislation to 
give States and localities the right to regulate, and if they choose, 
reject, interstate shipments of municipal solid waste.
  Mr. President, this is not a new issue to this body; we have grappled 
with the subject of interstate waste for years. The Senate has passed 
legislation to address this problem in each of the past three 
Congresses. Unfortunately, similar legislation has not been passed by 
the House of Representatives. This problem only grows more and more 
serious as we delay passing this important legislation.
  An estimated 16 million tons of municipal solid waste travels across 
State lines each and every year. And the problem will only grow in the 
future. Last May, New York City Mayor Rudolph Giuliani and New York 
Gov. George Pataki announced an agreement to close the city's last 
landfill, the Fresh Kills landfill. Without additional landfill space 
in New York, an additional 4 million tons of municipal solid waste will 
be on the interstate market every year after Fresh Kills closes on 
December 31, 2001.
  Landfills across the country are filling up, and communities are 
searching for new places to send their garbage. They are looking at 
places like North Dakota, where the air, water, and soil have not been 
spoiled by pollution and where local communities may be willing to take 
tremendous amounts of money in exchange for landfill space. Whether 
they want this imported waste or not, States and surrounding 
communities are almost powerless to stop the flow of garbage across 
their borders. Further, residents of local communities that agree to 
accept out-of-State waste often do not have all the information they 
need to make an informed choice to open their landfill space to 
imported garbage.
  Mr. President, out-of-State waste has already come to my State of 
North Dakota. We have been accepting industrial waste from General 
Motors plants from all across the country, although GM has recently 
begun sending their waste to another facility. We also import municipal 
solid waste incinerator ash from Minnesota. And one waste company tried 
for many years to open a superdump in North Dakota that would take 
nearly twice as much municipal solid waste as the entire State of North 
Dakota produces. My State is not unique in its situation; this is 
happening all across the country.
  Mr. President, the residents of my State and citizens across the 
country are tired of being powerless to regulate interstate waste. In 
fact, just last year North Dakota's voters approved an initiated 
measure that was designed to deter imports of other States' waste into 
North Dakota. That measure was ruled unconstitutional by the U.S. 
district judge. In the judge's decision, he wrote, ``The reality 
appears to be that trash is trash, and any law classifying it into 
home-grown versus foreign will not work.''
  Mr. President, unless Congress acts to give States and localities the 
authority to regulate and reject interstate waste, this situation will 
continue. The bill I am introducing today is really very simple. First, 
it gives States the authority to regulate interstate waste. If a State 
wants to reject new solid waste shipments, my bill would allow that.
  Second, it requires that affected local governments formally approve 
of any waste import. This gives the communities the ability to veto 
proposed shipments of out-of-State waste.
  Third, it provides an opportunity for the area surrounding the host 
community to be involved in a decision to accept out-of-State waste. A 
decision on siting a solid waste landfill, especially one that will 
take large amounts of imported waste, must be a collective one, and a 
small community alone should not be able to make a decision that will 
affect a much larger area.
  Finally, my bill requires that waste companies publicly release all 
the relevant information about their proposed landfill before a 
community makes a decision on it. This information should include 
estimated environmental impacts and mitigation, economic impacts, 
planned expansion, financial disclosure, and records of past violations 
by the owner and operator of the proposed disposal site. Waste 
companies hold up the promise of jobs and economic incentives, but they 
do not want to reveal the potential risks involved in their plans. In 
many cases, they may not even reveal their overall plans until it is 
too late to stop them. One practice I have seen involves having a local 
developer purchase a site and get a permit to dispose of modest amounts 
of solid waste. The big interstate waste company then buys out the 
local party and aggressively expands the site's permit. The local 
community doesn't have a chance. This isn't fair and cannot be allowed 
to continue. Communities must be able to make informed choices.
  Mr. President, we have been working on the interstate waste problem 
in the Senate for many years now. The problem has not gone away and it 
will not go away without congressional action. The trash is still 
moving, and States and communities are almost powerless to stop it. It 
is time to enact strong interstate waste legislation into law.
  Mr. President, I ask unanimous consent that a copy of my bill be 
included in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 384

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. AUTHORITY FOR STATES TO REGULATE MUNICIPAL SOLID 
                   WASTE GENERATED IN ANOTHER STATE.

       (a) Amendment.--Subtitle D of the Solid Waste Disposal Act 
     (42 U.S.C. 6941 et seq.) is amended by adding at the end the 
     following:

[[Page S1799]]

     ``SEC. 4011. AUTHORITY FOR STATES TO REGULATE MUNICIPAL SOLID 
                   WASTE GENERATED IN ANOTHER STATE.

       ``(a) Definitions.--In this section:
       ``(1) Affected local government.--The term `affected local 
     government' means the elected officials of a political 
     subdivision of a State in which a facility for the treatment, 
     incineration, or disposal of municipal solid waste is located 
     (as designated by the State under subsection (d)).
       ``(2) Affected local solid waste planning unit.--The term 
     `affected local solid waste planning unit' means a planning 
     unit, established under State law, that has--
       ``(A) jurisdiction over the geographic area in which a 
     facility for the treatment, incineration, or disposal of 
     municipal waste is located; and
       ``(B) authority relating to solid waste management 
     planning.
       ``(3) Municipal solid waste.--
       ``(A) In general.--The term `municipal solid waste' means 
     refuse, and any nonhazardous residue generated from the 
     combustion of the refuse, generated by--
       ``(i) the general public;
       ``(ii) a residential, commercial, or industrial source (or 
     any combination of the sources); or
       ``(iii) a municipal solid waste incinerator facility.
       ``(B) Inclusions.--The term `municipal solid waste' 
     includes refuse that consists of paper, wood, yard waste, 
     plastic, leather, rubber, or other combustible or 
     noncombustible material such as metal or glass (or any 
     combination of the materials).
       ``(C) Exclusions.--The term `municipal solid waste' does 
     not include--
       ``(i) hazardous waste identified under section 3001;
       ``(ii) waste resulting from an action taken under section 
     104 or 106 of the Comprehensive Environmental Response, 
     Compensation, and Liability Act of 1980 (42 U.S.C. 9604, 
     9606);
       ``(iii) material collected for the purpose of recycling or 
     reclamation;
       ``(iv) waste generated in the provision of service in 
     interstate, intrastate, foreign, or overseas air 
     transportation;
       ``(v) industrial waste (including debris from construction 
     or demolition) that is not identical to municipal solid waste 
     in composition and physical and chemical characteristics 
     or that is not collected and diposed of with other 
     municipal solid waste collection services; or
       ``(vi) medical waste that is segregated from municipal 
     solid waste.
       ``(b) Authority To Regulate.--
       ``(1) In general.--Each State is authorized to enact and 
     enforce a State law that regulates the treatment, 
     incineration, and disposal of municipal solid waste generated 
     in another State.
       ``(2) Authorities.--A State law described in paragraph (1) 
     may include provisions for--
       ``(A) the imposition of a ban or limit on the importation 
     of municipal solid waste generated outside the State; and
       ``(B) the collection of differential fees or other charges 
     for the treatment, incineration, or disposal of municipal 
     solid waste generated in another State.
       ``(c) Local Government Approval.--
       ``(1) In general.--Except as provided in paragraph (2) or 
     as provided under State law, the owner or operator of a 
     landfill, incinerator, or other waste disposal facility in a 
     State may not accept for treatment, incineration, or disposal 
     any municipal solid waste generated outside the State unless 
     the owner or operator has obtained a written authorization to 
     accept the waste from--
       ``(A) the affected local government; and
       ``(B) any affected local solid waste planning unit 
     established under State law.
       ``(2) Exceptions.--
       ``(A) In general.--Paragraph (1) shall not apply with 
     respect to an owner or operator of a landfill, incinerator, 
     or other waste disposal facility that--
       ``(i) otherwise complies with all applicable laws of the 
     State in which the facility is located relating to the 
     treatment, incineration, or disposal of municipal solid 
     waste; and
       ``(ii) before the date of enactment of this section, 
     accepted for treatment, incineration, or disposal municipal 
     solid waste generated outside the State.
       ``(B) Existing authorizations.--An owner or operator of a 
     facility described in paragraph (1) that, before the date of 
     enactment of this section, obtained a written authorization 
     from--
       ``(i) the appropriate official of a political subdivision 
     of the State (as determined by the State); and
       ``(ii) any affected local solid waste planning unit 
     established pursuant to the law of the State;
     to carry out the treatment, incineration, or disposal of 
     municipal solid waste generated outside the State shall, 
     during the period of authorization, be considered to be in 
     compliance with the requirements of paragraph (1).
       ``(C) Facilities under construction.--If, before the date 
     of enactment of this section, an appropriate political 
     subdivision of a State (as determined by the State) and any 
     affected local solid waste planning unit established under 
     the law of the State issued a written authorization for a 
     facility that is under construction, or is to be constructed, 
     to accept for treatment, incineration, or disposal municipal 
     solid waste generated outside the State, the owner or 
     operator of the facility, when construction is completed, 
     shall be considered to be in compliance with paragraph (1) 
     during the period of authorization.
       ``(3) Expansion of facilities.--An owner or operator that 
     expands a landfill, incinerator, or other waste disposal 
     facility shall be required to obtain the authorizations 
     required under paragraph (1) before accepting for treatment, 
     incineration, or disposal municipal solid waste that is 
     generated outside the State.
       ``(4) Procedure.--Before taking formal action with respect 
     to an authorization to receive municipal solid waste or 
     incinerator ash generated outside the State, the affected 
     local government and the affected local solid waste planning 
     unit shall--
       ``(A) require from the owner or operator of the facility 
     seeking the authorization and make readily available to the 
     Governor, adjoining Indian tribes, and other interested 
     persons for inspection and copying--
       ``(i) a brief description of the planned facility, 
     including a description of the facility size, ultimate waste 
     capacity, and anticipated monthly and yearly waste quantity 
     to be handled;
       ``(ii) a map of the facility that discloses--

       ``(I) the location of the facility in relation to the local 
     road system and topographical and hydrological features; and
       ``(II) any buffer zones and facility units that are to be 
     acquired by the owner or operator of the facility;

       ``(iii) a description of the then-current environmental 
     characteristics of the facility, including information 
     regarding--

       ``(I) ground water resources; and
       ``(II) alterations that may be necessitated by or occur as 
     a result of operation of the facility;

       ``(iv) a description of--

       ``(I) appropriate environmental controls to be used at the 
     facility, including run-on or runoff management, air 
     pollution control devices, source separation procedures, 
     methane monitoring and control, landfill covers, liners, 
     leachate collection systems, and monitoring and testing 
     programs; and
       ``(II) any waste residuals generated by the facility, 
     including leachate or ash, and the planned management of the 
     residuals;

       ``(v) a description of the site access controls to be 
     employed and roadway improvements to be made by the owner or 
     operator and an estimate of the timing and extent of 
     increased local truck traffic;
       ``(vi) a list of all required Federal, State, and local 
     permits required to operate the landfill and receive waste 
     generated outside the State;
       ``(vii) estimates of the personnel requirements of the 
     facility, including information regarding the probable skill 
     and education levels required for jobs at the facility that 
     distinguishes between employment statistics for pre-
     operational levels and those for post-operational levels;
       ``(viii)(I) information with respect to any violations of 
     law (including regulations) by the owner or operator, or 
     subsidiaries;
       ``(II) the disposition of enforcement proceedings taken 
     with respect to the violations; and
       ``(III) corrective action and rehabilitation measures taken 
     as a result of the proceedings;
       ``(ix) information required by State law to be provided 
     with respect to gifts, contributions, and contracts by the 
     owner or operator to any elected or appointed public 
     official, agency, institution, business, or charity located 
     within the affected local area to be served by the facility;
       ``(x) information required by State law to be provided by 
     the owner or operator with respect to compliance by the owner 
     or operator with the State solid waste management plan in 
     effect under section 4007;
       ``(xi) information with respect to the source and amount of 
     capital required to construct and operate the facility in 
     accordance with the information provided under clauses (i) 
     through (vii); and
       ``(xii) information with respect to the source and amount 
     of insurance, collateral, or bond secured by the applicant to 
     meet all Federal and State requirements;
       ``(B) provide opportunity for public comment, including at 
     least 1 public hearing; and
       ``(C) not less than 30 days before taking formal action--
       ``(i) publish notice of the action in a newspaper of 
     general circulation; and
       ``(ii) notify the Governor, adjoining local governments, 
     and adjoining Indian tribes.
       ``(d) Designation of Affected Local Government.--
       ``(1) In general.--Not later than 90 days after the date of 
     enactment of this section, the Governor of each State shall 
     designate the type of political subdivision of the State that 
     shall serve as the affected local government for the purpose 
     of authorizing a facility to accept for treatment, 
     incineration, or disposal of municipal solid waste generated 
     outside of the State.
       ``(2) Failure to designate.--If the Governor of a State 
     fails to make a designation by the date specified in 
     paragraph (1), the affected local government shall be the 
     public body with primary jurisdiction over the land or use of 
     the land on which the facility is located.''.
       (b) Table of Contents.--The table of contents for subtitle 
     D of the Solid Waste Disposal Act is amended by adding after 
     the item relating to section 4010 the following:
``Sec. 4011. Authorization for States to regulate municipal solid waste 
              generated in another State.''.
              
                                        ____________________