[Congressional Record Volume 151, Number 67 (Thursday, May 19, 2005)]
[Senate]
[Pages S5533-S5545]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mrs. LINCOLN (for herself and Mr. Talent):
S. 1076. A bill to amend the Internal Revenue Code of 1986 to extend
the excise tax and income tax credits for the production of biodiesel;
to the Committee on Finance.
Mr. TALENT. Mr. President, today Senator Lincoln and I introduce
legislation to extend the current excise tax credit for biodiesel
through 2010. This tax credit brings great benefits to our nation's
economy and environment while at the same time reducing our dependence
on foreign oil.
Biodiesel is a cleaner burning alternative to petroleum-based diesel,
and it is made from renewable resources like soybeans and other natural
fats and oils, grown here in the United States. It works in any diesel
engine with few or no modifications. It can be used in its pure form
(B100), or blended with petroleum diesel at a level--most commonly 20
percent (B20). Soybean farmers in Missouri and across the Nation have
invested millions of dollars to build a strong and viable biodiesel
industry.
In last years JOBS bill, we created an excise tax credit for
biodiesel; a $1/gallon credit for biodiesel produced from virgin oils,
and a $0.50/gallon credit for biodiesel produced from yellow grease or
recycled cooking oil. This important tax credit is set to expire in
less than 2 years. It is imperative that we extend this incentive that
is expected to increase domestic energy security, reduce pollution and
stimulate the economy.
I certainly would prefer to fill up my tank with a clean burning fuel
grown by farmers in our Nation's heartland instead of petroleum
imported from the Saudis. Our farmers pose no security risks. I'm not
alone in this preference. More than 400 major fleets use biodiesel
commercially nationwide. About 300 retail filling stations make
biodiesel available to the public, and more than 1,000 petroleum
distributors carry it nationwide.
I am pleased that we will soon have a biodiesel plant in Missouri.
Missouri Soybean Association and Mid-America Biofuels LLC recently
announced plans to build a biodiesel plant in Mexico, MO. The plant is
expected to produce 30 million gallons of biodiesel annually. There is
strong support for this endeavor and they have exhibited exceptional
leadership by bringing this plant to Missouri. I look forward to
working with them.
As I've said before, biodiesel is a fuel of the future that we can
use today. It is nontoxic, biodegradable and essentially free of sulfur
and aromatics. Biodiesel offers similar fuel economy, horsepower and
torque to petroleum diesel while providing superior lubricity. It
significantly reduces emissions of carbon monoxide, particulate matter,
unburned hydrocarbons and sulfates. On a lifecycle basis, biodiesel
reduces carbon dioxide emissions by 78 percent compared to petroleum
diesel. In other words, biodiesel is good for your car and the
environment.
Additionally, this new value added market for soybeans brings jobs to
our economy and benefits to farmers. Based on the USDA baseline
estimates for future soybean production, over a five year time period
the biodiesel tax incentive could add almost $1 billion directly to the
bottom line of U.S. farm income. In addition, the provisions will
significantly benefit the U.S. economy and could increase U.S. gross
output by almost $7 billion.
I want to thank Senator Lincoln and Senator Grassley for their
leadership on this important issue. We need to prevent this tax credit
from expiring. It is expected to increase biodiesel demand from an
estimated 30 million gallons in fiscal year 2004 to at least 124
million gallons per year, based on a U.S. Department of Agriculture
study.
______
By Mr. JEFFORDS (for himself, Mr. Lautenberg, Mrs. Boxer, and Mr.
Lieberman):
S. 1080. A bill to amend the Safe Drinking Water Act to require the
use of nontoxic products in the case of hydraulic fracturing that
occurs during oil or natural gas production activities; to the
Committee on Environment and Public Works.
Mr. JEFFORDS. Mr. President, I would like to thank Senators
Lautenberg, Boxer, and Lieberman for working with me to introduce this
important legislation, the Hydraulic Fracturing Safety Act of 2005.
Over half of our Nation's fresh drinking water comes from underground
sources. The process of hydraulic fracturing threatens our drinking
water supplies. Hydraulic fracturing occurs when fluids are injected at
high rates of speed into rock beds to fracture them and allow easier
harvesting of natural oils and gases. It is these injection fluids that
are of high concern.
In a recent report, the EPA acknowledged that these fluids, many of
them toxic and harmful to people, are pumped directly into or near
underground sources of drinking water. This same report cited earlier
studies that indicated that only 61 percent of these fluids are
recovered after the process is complete. This leaves 39 percent of
these fluids in the ground, risking contamination of our drinking
water.
Let me share with you the story of Laura Amos, a resident of Colorado
who suffers from ill health effects today. In May of 2001, while an oil
and gas well was being hydraulically fractured near her home, the metal
top of her drinking well exploded into the air. At the same time, her
water became bubbly and developed a horrible odor.
For three months, she was provided alternate drinking water by
Ballard, later know as Encana, the company that owned the well near her
home. It took this long until her water appeared normal again. Laura
and her family drank from this well over the next couple of years. It
was then that Laura developed a rare adrenal-gland tumor. During this
time, Laura began actively investigating the chemicals used during the
hydraulic fracturing of a well near her home. She learned about a
chemical called 2-BE, which was later linked to adrenal-gland tumors in
rodents.
Litigation over the last several years has resulted in findings that
hydraulic fracturing should be regulated as part of the underground
injection control program in the Safe Drinking Water Act. Yet, EPA
indicates in writing that they have no intention of publishing
regulations to that effect or ensuring that state programs adequately
regulate hydraulic fracturing.
I ask unanimous consent that a series of letters to EPA and their
responses dated October 14, 2004 and December 7, 2004, be inserted in
the Record.
In June of 2004, an EPA study on hydraulic fracturing identified
diesel as a ``constituent of potential concern.'' Prior to this, EPA
had entered into a Memorandum of Agreement with three of the major
hydraulic fracturing corporations, whom all voluntarily agreed to ban
the use of diesel, and if necessary select replacements that will not
cause hydraulic fracturing fluids to endanger underground sources of
drinking water. However, all parties acknowledged that only technically
feasible and cost-effective actions to provide alternatives will be
sought.
Hydraulic fracturing needs to be regulated under the Safe Drinking
Water Act and it has got to start now. It is unconscionable to allow
the oil and gas industry to pump toxic fluids into the ground.
My bill, the Hydraulic Fracturing Safety Act of 2005, clarifies once
and for all that hydraulic fracturing is part of the Underground
Injection Control Program regulated under the Safe Drinking Water Act.
This legislation also bans the use of diesel and other toxic
pollutants for oil and natural gas exploration.
Last1y, this legislation requires EPA to ensure that States
adequately regulate hydraulic fracturing activities in all States to
ensure that companies area adhering to our Nation's laws and conducting
business in a manner safe for all Americans.
We need to do the right thing, and take action now to protect our
Nation's drinking water supply. According to the oil and gas industry,
90 percent our oil and gas wells will be accessed through hydraulic
fracturing. Congress and the EPA have to work together to provide a
consistent and safe supply of drinking water for all Americans.
I ask unanimous consent that the text of the bill be printed in the
Record.
[[Page S5534]]
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate, Committee on Environment and Public Works,
Washington, DC, October 14, 2004.
Administrator Michael O. Leavitt,
Environmental Protection Agency, Ariel Rios Building,
Washington, DC.
Dear Administrator Leavitt: We are writing to you regarding
the Environmental Protection Agency's (EPA's) administration
of the Safe Drinking Water Act (SDWA) as it pertains to
hydraulic fracturing. In recent months, the Agency has taken
several key actions on this issue:
On December 12, 2003, the EPA signed a Memorandum of
Understanding with three of the largest service companies
representing 95 percent of all hydraulic fracturing performed
in the U.S. These three companies, Halliburton Energy
Services, Inc., Schlumberger Technology Corporation, and BJ
Services Company, voluntarily agreed not to use diesel fuel
in their hydraulic fracturing fluids while injecting into
underground sources of water for coalbed methane production.
In June of 2004, EPA completed its study on hydraulic
fracturing impacts and released its findings in a report
entitled, ``Evaluation of Impacts to Underground Sources of
Drinking Water by Hydraulic Fracturing of Coalbed Methane
Reservoirs. The report concluded that hydraulic fracturing
poses little chance of contaminating underground sources of
drinking water and that no further study was needed.
On July 15, 2004, the EPA published in the Federal Register
its final response to the court remand (Legal Environmental
Assistance Foundation (LEAF), Inc., v. United States
Environmental Protection Agency, 276 F. 3d 1253). The Agency
determined that the Alabama underground injection control
(UIC) program for hydraulic fracturing, approved by EPA under
section 1425 of the SDWA, complies with Class II well
requirements.
We are concerned that the Agency's execution of the SDWA,
as it applies to hydraulic fracturing, may not be providing
adequate public health protection, consistent with the goals
of the statute.
First, we have questions regarding the information
presented in the June 2004 EPA Study and the conclusion to
forego national regulations on hydraulic fracturing in favor
of an MOU limited to diesel fuel. In the June 2004 EPA Study,
EPA identifies the characteristics of the chemicals found in
hydraulic fracturing fluids, according to their Material
Safety Data Sheets (MSDSs), identifies harmful effects
ranging from eye, skin, and respiratory irritation to
carcinogenic effects. EPA determines that the presence of
these chemicals does not warrant EPA regulation for several
reasons. First, EPA states that none of these chemicals,
other than BTEX compounds, are already regulated under the
SDWA or are on the Agency's draft Contaminant Candidate List
(CCL). Second, the Agency states that it does not believe
that these chemicals are present in hydraulic fracturing
fluids used for coalbed methane, and third, that if they are
used, they are not introduced in sufficient concentrations to
cause harm. These conclusions raise several questions:
1. The data presented in the June 2004 EPA study identifies
potential harmful effects from the chemicals listed by the
Agency in this report. Has the Agency or does the Agency plan
to incorporate the results of this study and the fact that
these chemicals are present in hydraulic fracturing agents
into the CCL development process, and if not, why not?
2. In the June 2004 EPA study, the Agency concludes that
hydraulic fracturing fluids do not contain most of the
chemicals identified. This conclusion is based on two items--
``conversations with field engineers'' and ``witnessing three
separate fracturing events'' (June 2004 EPA Study, p. 4-17.)
a. How did the Agency select particular field engineers
with whom to converse on this subject?
b. Please provide a transcript of the conversations with
field engineers, including the companies or consulting firms
with which they were affiliated.
c. How did the Agency select the three separate fracturing
events to witness?
d. Were those events representative of the different site-
specific characteristics referenced in the June 2004 study
(June 2004 EPA Study, p. 4-19) as determining factors in the
types of hydraulic fracturing fluids that will be used?
e. Which companies were observed?
f. Was prior notice given of the planned witnessing of
these events?
g. What percentage of the annual number of hydraulic
fracturing events that occur in the United States does ``3''
represent?
h. Finally, please explain why the Material Safety Data
Sheets for the fluids identified as potentially being used in
hydraulic fracturing list component chemicals that the EPA
does not believe are present.
The Agency concludes in the June 2004 study that even if
these chemicals are present, they are not present in
sufficient concentrations to cause harm. The Agency bases
this conclusion on assumed flowback, dilution and
dispersion, adsorption and entrapment, and biodegradation.
The June 2004 study repeatedly cites the 1991 Palmer
study, ``Comparison between gel-fracture and water-
fracture stimulations in the Black Warrior basin;
Proceedings 1991 Coalbed Methane Symposium,'' which found
that only 61 percent of the fluid injected during
hydraulic fracturing is recovered. Please explain what
data EPA collected and what observations the Agency made
in the field that would support the conclusion that the 39
percent of fluids remaining in the ground are not present
in sufficient concentrations to adversely affect
underground sources of drinking water.
After identifying BTEX compounds as the major constituent
of concern (June 2004 EPA study, page 4-15), the Agency
entered into the MOU described above as its mechanism to
eliminate diesel fuel from hydraulic fracturing fluids.
3. a. How does the Agency plan to enforce the provisions in
the MOU and ensure that its terms are met?
b. For example, will the Agency conduct independent
monitoring of hydraulic fracturing processes in the field to
ensure that diesel fuel is not used?
c. Will the Agency require states to monitor for diesel use
as part of their Class II UIC Programs?
4. a. Should the Agency become aware of an unreported
return to the use of diesel fuel in hydraulic fracturing by
one of the parties to the MOU, what recourse is available to
EPA under the terms of the MOU?
b. What action does the Agency plan to take should such a
situation occur?
c. Why did EPA choose to use an MOU as opposed to a
regulatory approach to achieve the goal of eliminating diesel
fuel in hydraulic fracturing?
d. What revisions were made to the June 2004 EPA study
between the December 2003 adoption of the MOU and the 2004
release of the study? Which of those changes dealt
specifically with the use and effects of diesel fuel in
hydraulic fracturing?
e. The Agency also states that it expects that even if
diesel were used, a number of factors would decrease the
concentration and availability of BTEX. Please elaborate on
the data EPA collected and the observations the Agency made
in the field that would support the conclusion that the 39
percent of fluids remaining in the ground (1991 Palmer),
should they contain BTEX compounds, would not be present in
sufficient concentrations to adversely affect underground
sources of drinking water.
We are also concerned that the EPA response to the court
remand leaves several unanswered questions. The Court
decision found that hydraulic fracturing wells ``fit squarely
within the definition of Class II wells.'' (LEAF II, 276 F.3d
at 1263), and remanded back to EPA to determine if the
Alabama underground injection control program under section
1425 complies with Class II well requirements. On July 15,
2004, EPA published its finding in the Federal Register that
the Alabama program complies with the requirements of the
1425 Class II well requirements. (69 FR No. 135, pp 42341.)
According to EPA, Alabama is the only state that has a
program specifically for hydraulic fracturing approved under
section 1425. Based on this analysis, it seems that in order
to comply with the Court's finding that hydraulic fracturing
is a part of the Class II well definition, the remaining
states should be using their existing Class II, EPA-approved
programs, under 1422 or 1425, to regulate hydraulic
fracturing.
To date, EPA has approved Underground Injection Control
programs in 34 states. Approval dates range from 1981-1996.
5. Do you plan to conduct a national survey or review to
determine whether state Class II programs adequately regulate
hydraulic fracturing?
At the time that these programs were approved, the
standards against which state Class II programs were
evaluated did not include any minimum requirements for
hydraulic fracturing. In its January 19, 2000 notice of EPA's
approval of Alabama's 1425 program, the Agency stated, ``When
the regulations in 40 CFR parts 144 and 146, including the
well classifications, were promulgated, it was not EPA's
intent to regulate hydraulic fracturing of coal beds.
Accordingly, the well classification systems found in 40 CFR
144.6 and 146.5 do not expressly include hydraulic fracturing
injection activities. Also, the various permitting,
construction and other requirements found in Parts 144 and
146 do not specifically address hydraulic fracturing.'' (65
FR No. 12, p. 2892.)
Further, EPA acknowledges that there can be significant
differences between hydraulic fracturing and standard
activities addressed by state Class II programs. In the
January 19, 2000 Federal Register notice, the Agency states:
. . . since the injection of fracture fluids through these
wells is often a one-time exercise of extremely limited
duration (fracture injections generally last no more than two
hours) ancillary to the well's principal function of
producing methane, it did not seem entirely appropriate to
ascribe Class II status to such wells, for all regulatory
purposes, merely due to the fact that, prior to commencing
production, they had been fractured.'' (65 FR No. 12, p.
2892.)
Although hydraulic fracturing falls under the Class II
definition, the Agency has acknowledged that hydraulic
fracturing is different than most of the activities that
occur under Class II and that there are no national
regulations or standards on how to regulate hydraulic
fracturing.
6. In light of the Court decision and the Agency's July
2004 response to the Court remand, did the Agency consider
establishing national regulations or standards for hydraulic
fracturing or minimum requirements for hydraulic fracturing
regulations under state Class II programs?
[[Page S5535]]
7. a. If so, please provide a detailed description of your
consideration of establishing these regulations or standards
and the rationale for not pursuing them.
b. Do you plan to establish such regulations or standards
in the future?
c. If not, what standards will be used as the standard of
measurement for compliance for hydraulic fracturing under
state Class II programs?
We appreciate your timely response to these questions in
reaction to the three recent actions taken by the EPA in
relation to hydraulic fracturing--the adoption of the MOU,
the release of the final study, and the response to the Court
remand. Clean and safe drinking water is one of our nation's
greatest assets, and we believe we must do all we can to
continue to protect public health. Thank you again for your
response.
Sincerely,
Jim Jeffords.
Barbara Boxer.
____
United States Environmental
Protection Agency,
Washington, DC, December 7, 2004.
Hon. Jim Jeffords,
U.S. Senate,
Washington, DC.
Dear Senator Jeffords: Thank you for your letter to
Administrator Michael Leavitt, dated October 14, 2004,
concerning the recent actions that the Environmental
Protection Agency (EPA) has taken in implementing the
Underground Injection Control (UIC) program with respect to
hydraulic fracturing associated with coalbed methane wells.
The Office of Ground Water and Drinking Water (OGWDW) has
prepared specific responses to your technical and policy
questions regarding how we conducted the hydraulic fracturing
study, the reasons behind our decisions pertaining to the
recommendations contained in the study, and any plans or
thoughts we may have on the likelihood for future
investigation, regulation, or guidance concerning such
hydraulic fracturing.
Since the inception of the UIC program, EPA has implemented
the program to ensure that public health is protected by
preventing endangerment of underground sources of drinking
water (USDWs). The Agency has placed a priority on
understanding the risks posed by different types of UIC
wells, and worked to ensure that appropriate regulatory
actions are taken where specific types of wells may pose a
significant risk to drinking water sources. In 1999, in
response to concerns raised by Congress and other
stakeholders about issues associated with the practice of
hydraulic fracturing of coalbed methane wells in the State of
Alabama, EPA initiated a study to better understand the
impacts of the practice.
EPA worked to ensure that its study, which was focused on
evaluating the potential threat posed to USDWs by fluids used
to hydraulically fracture coalbed methane wells, was carried
out in a transparent fashion. The Agency provided many
opportunities to all stakeholders and the general public to
review and comment on the Agency study design and the draft
study. The study design was made available for public comment
in July 2000, a public meeting was held in August 2000,
public notice of the final study design was provided in the
Federal Register in September 2000, and the draft study was
noticed in the Federal Register in August 2002. The draft
report was also distributed to all interested parties and
posted on the internet. The Agency received more than 100
comments from individuals and other entities.
EPA's final June 2004 study, Evaluation of Impacts to
Underground Sources of Drinking Water by Hydraulic Fracturing
of Coalbed Methane Reservoirs, is the most comprehensive
review of the subject matter to date. The Agency did not
recommend additional study at this time due to the study's
conclusion that the potential threat to USDWs posed by
hydraulic fracturing of coalbed methane wells is low.
However, the Administrator retains the authority under the
Safe Drinking Water Act (SDWA) section 1431 to take
appropriate action to address any imminent and substantial
endangerment to public health caused by hydraulic fracturing.
During the course of the study, EPA could not identify any
confirmed cases where drinking water was contaminated by
hydraulic fracturing fluids associated with coalbed methane
production. We did uncover a potential threat to USDWs
through the use of diesel fuel as a constituent of fracturing
fluids where coalbeds are co-located with a USDW. We reduced
that risk by signing and implementing the December 2003
Memorandum of Agreement (MOA) with three major service
companies that carry out the bulk of coalbed methane
hydraulic fracturing activities throughout the country. This
past summer we confirmed that the companies are carrying out
the MOA and view the completion of this agreement as a
success story in protecting USDWs.
In your letter, you asked about the Agency's actions with
respect to hydraulic fracturing in light of LEAF v. EPA. In
this case, the Eleventh Circuit held that the hydraulic
fracturing of coalbed seams in Alabama to produce methane gas
was ``underground injection'' for purposes of the SDWA and
EPA's UIC program. Following that decision, Alabama
developed--and EPA approved--a revised UIC program to protect
USDWs during the hydraulic fracturing of coalbeds. The
Eleventh Circuit ultimately affirmed EPA's approval of
Alabama's revised UIC program.
In administering the UIC program, the Agency believes it is
sound policy to focus its attention on addressing those wells
that pose the greatest risk to USDWs. Since 1999, our focus
has been on reducing risk from shallow Class V injection
wells. EPA estimates that there are more than 500,000 of
these wells throughout the country. The wastes injected into
them include, in part, storm water runoff, agricultural
effluent, and untreated sanitary wastes. The Agency and
States are increasing actions to address these wells in order
to make the best use of existing resources.
EPA remains committed to ensuring that drinking water is
protected. I look forward to working with Congress to respond
to any additional questions, or the concerns that Members of
Congress or their constituents may have. If you have further
comments or questions, please contact me, or your staff may
contact Steven Kinberg of the Office of Congressional and
Intergovernmental Relations at (202) 564-5037.
Sincerely,
Benjamin H. Grumbles,
Acting Assistant Administrator.
____
EPA Response to Specific Questions Regarding Hydraulic Fracturing
1. The data presented in the June 2004 EPA study identifies
potential harmful effects from the chemicals listed by the
Agency in this report. Has the Agency or does the Agency plan
to incorporate the results of this study and the fact that
these chemicals are present in hydraulic fracturing agents
into the Contaminant Candidate List (CCL) development
process, and if not, why not?
Although the EPA CBM study found that certain chemical
constituents could be found in some hydraulic fracturing
fluids, EPA cannot state categorically that they are
contained in all such fluids. Each fracturing procedure may
be site specific or basin specific and fluids used may depend
on the site geology, the stratigraphy, (i.e., type of coal
formation), depth of the formation, and the number of coal
beds for each fracture operation. The Agency's study did not
develop new information related to potential health effects
from these chemicals; it merely reported those potential
health effects indicated on the Material Safety Data Sheet
(MSDS) or other information we obtained from the service
companies.
As noted in the final report, ``Contaminants on the CCL are
known or anticipated to occur in public water systems . . .''
The extent to which the contaminants identified in fracturing
fluids are part of the next CCL process will depend upon
whether they meet this test.
2. In the June 2004 EPA study, the Agency concludes that
hydraulic fracturing fluids do not contain most of the
chemicals identified. This conclusion is based on two items--
``conversations with field engineers'' and ``witnessing three
separate fracturing events''.
a. How did the agency select particular field engineers
with whom to converse on this subject?
The Agency did not ``select'' any of the engineers; we
talked with the engineers who happened to be present at the
field operations. In general those were engineers from the
coalbed methane companies and the service companies who
conducted the actual hydraulic fracturing. When we scheduled
to witness the events, we usually conversed with the
production company engineer to arrange the logistics and only
spoke with the field engineers from the service companies at
the well site.
b. Please provide a transcript of the conversations with
field engineers, including the companies or consulting firms
with which they were affiliated.
EPA did not prepare a word-for-word transcript of
conversations with engineers.
c. How did the Agency select the three separate fracturing
events to witness?
The events selected were dependent on the location of the
fracturing events, the schedules of both EPA OGWDW staff and
EPA Regional staff to witness the event, and the preparation
time to procure funding and authorization for travel EPA
witnessed the 3 events because the planning and scheduling of
these happened to work for all parties. In one event, only
EPA HQ staff witnessed the procedure, in another event only
EPA Regional staff witnessed it, and in one event, both EPA
HQ and Regional staff attended with DOE staff.
d. Were those events representative of the different site-
specific characteristics referenced in the June 2004 study
(p. 4-19)'' as determining factors in the types of hydraulic
fracturing fluids that will be used?
Budget limitations precluded visits to each of the 11
different major coal basins in the U.S. It would have proven
to be an expensive and time-consuming process to witness
operations in each of these regions. Additionally, even
within the same coal basin there are potentially many
different types of well configurations, each of which could
affect the fracturing plan. EPA believed that witnessing
events in 3 very different coal basin settings--Colorado,
Kansas, and south western Virginia--would give us an
understanding of the practice as conducted in different
regions of the country.
e. Which companies were observed?
EPA observed a Schlumberger hydraulic fracturing operation
in the San Juan basin of Colorado, and Halliburton hydraulic
fracturing operations in southwest Virginia and Kansas.
f. Was prior notice given of the planned witnessing of
these events?
[[Page S5536]]
Yes, because it would have been very difficult to witness
the events had they not been planned. To plan the visit, EPA
needed to have prior knowledge of the drilling operation, the
schedule of the drilling, and the scheduling of the services
provided by the hydraulic fracturing service company. Wells,
in general, take days to drill (in some cases weeks and
months depending on depth of the well) and the fracturing may
take place at a later date depending on the availability of
the service company and other factors beyond anyone's
control.
g. What percentage of the annual number of hydraulic
fracturing events that occur in the United States does ``3''
represent?
Because of a limited project budget, EPA did not attempt to
attend a representative number of hydraulic fracturing
events; that would have been beyond the scope of this Phase I
investigation. The primary purpose of the site visits was to
provide EPA personnel familiarity with the hydraulic
fracturing process as applied to coalbed methane wells. The
visits served to give EPA staff a working-level, field
experience on exactly how well-site operations are conducted,
how the process takes place, the logistics in setting up the
operation, and the monitoring and verification conducted by
the service companies to assure that the fracturing job was
accomplished effectively and safely. EPA understands that
thousands of fracturing events take place annually, for both
conventional oil and gas operations and coalbed methane
production, and that three events represent an extremely
small fraction of that total.
h. Finally, please explain why the Material Safety Data
Sheets for the fluids identified as potentially being used in
hydraulic fracturing list component chemicals that the EPA
does not believe are present.
In Table 4-1 of the final study, EPA identified the range
of fluids and fluid additives commonly used in hydraulic
fracturing. Some of the fluids and fluid additives may
contain constituents of potential concern, however, it is
important to note that the information presented in the MSDS
is for the pure product. Each of the products listed in Table
4-1 is significantly diluted prior to injection. The MSDS
information we obtained is not site specific. We reviewed a
number of data sheets and we noted that many of them are
different, contain different lists of fluids and additives,
and thus we concluded in the final report that we cannot say
whether one specific chemical, or chemicals, is/are present
at every hydraulic fracturing operation.
3. a. How does the Agency plan to enforce the provisions in
the MOU and ensure that its terms are met?
There is no mechanism to ``enforce'' a voluntary agreement
such as the MOA signed by EPA and the three major service
companies. The MOA was signed in good faith by senior
managers from the three service companies and the Assistant
Administrator for Water, and EPA expects it will be carried
out. EPA has written all signers of the MOA and asked if they
have implemented the agreement and how will they ensure that
diesel fuel is not being used in USDWs. All three have
written back to EPA, stating that they have removed diesel
from their CBM fracturing fluids when a USDW is involved and
intend to implement a plan to ensure that such procedures are
met. EPA intends to follow up with the service companies on
progress in implementing such plans.
b. For example, will the Agency conduct independent
monitoring of hydraulic fracturing processes in the field to
ensure that diesel fuel is not used?
It is unlikely that EPA will conduct such field monitoring.
First, in most oil and gas producing states, and coalbed
methane producing states, the State Oil and Gas Agency
generally has UIC primary enforcement responsibility, and the
state inspectors are the primary field presence for such
operations. Second, EPA has a very limited field staff and in
most cases they are engaged in carrying out responsibilities
related to Class I, III and V wells in states in which they
directly implement the UIC program. EPA plans to work with
several organizations, including the Ground Water Protection
Council and the Independent Petroleum Association of America
to determine if there are other smaller companies conducting
CBM hydraulic fracturing with diesel fuel as a constituent
and will explore the possibility of including them in the
MOA.
c. Will the Agency require states to monitor for diesel use
as part of their Class II programs?
Given limited funds for basic national and state UIC
program requirements, EPA does not have plans to include the
states as parties to the MOA or require them to monitor for
diesel fuel in hydraulic fracturing fields. The State of
Alabama's EPA-approved UIC program prohibits the hydraulic
fracturing of coalbeds in a manner that allows the movement
of contaminants into USDWs at levels exceeding the drinking
water MCLs or that may adversely affect the health of
persons. Current federal regulations do not expressly address
or prohibit the use of diesel fuel in fracturing fluids, but
the SDWA and UIC regulations allow States to be more
stringent than the federal UIC program.
4. a. Should the Agency become aware of an unreported
return to the use of diesel fuel in hydraulic fracturing by
one of the parties to the MOD, what recourse is available to
EPA under the terms of the MOD?
There are no terms in the MOA that would provide EPA a
mechanism to take any enforcement action should the Agency
become aware of an unreported return to the use of diesel
fuel in hydraulic fracturing by one of the parties to the
MOA. However, EPA would work closely with the companies to
determine why such action occurred and discuss possible
termination procedures. The agreement defines how either
party can terminate the agreement. EPA would make every
effort to work with such a company to maintain their
participation in the agreement. EPA entered the agreement
with an assumption that the companies would honor the
commitments they have made about diesel use in hydraulic
fracturing fluids.
b. What action does the Agency plan to take should such a
situation occur?
If such a situation does happen, and EPA learns that diesel
fuel used in hydraulic fracturing fluid may enter a USDW and
may present an imminent and substantial threat to public
health, EPA may issue orders or initiate litigation as
necessary pursuant to SDWA section 1431 to protect public
health. Otherwise, EPA would take the actions described under
the previous question.
c. Why did EPA choose to use an MOU as opposed to a
regulatory approach to achieve the goal of eliminating diesel
fuel in hydraulic fracturing?
While the report's findings did not point to a significant
threat from diesel fuel in hydraulic fracturing fluids, the
Agency believed that a precautionary approach was
appropriate. EPA chose to work collaboratively with the oil
service companies because we thought that such an approach
would work quicker, and be more effective than other
approaches the Agency might employ (i.e. rulemaking,
enforcement orders, etc.). We believed that once the service
companies became familiar with the issue, they would
willingly address EPA's concerns. After several months of
meetings and negotiations between representatives of the
service companies and high level management in EPA's Office
of Water, a Memorandum of Agreement (MOA) was drafted and
signed by all parties effective December 24, 2003.
We believe that the MOA mechanism accomplished the intended
goal of removing diesel from hydraulic fracturing fluids in a
matter of months, whereas proposing a rule to require removal
would have taken at least a year or more.
d. What revisions were made to the June 2004 EPA study
between the December 2003 adoption of the MOD and the 2004
release of the study? Which of those changes dealt
specifically with the use and effects of diesel fuel in
hydraulic fracturing?
During the specified time-frame, EPA focused on making
editorial changes to the report and clarifying information
relative to its qualitative discussion of the mitigating
effects of dilution, dispersion, adsorption, and
biodegradation of residual fluids. With respect to the use
and effects of diesel fuel, changes in the study primarily
focused on including language in the text of the report which
acknowledged that we had successfully negotiated an MOA with
the service companies. Specifically. EPA referenced this
agreement in the text of the report in the Executive Summary
at page ES-2 and on page BS-17 and further discussed the MOA
in Chapter 7 in the Conclusions Section of the study.
e. The Agency also states that it expects that even if
diesel were used a number of factors would decrease the
concentration and availability of BTEX. Please elaborate on
the data EPA collected and the observations the Agency made
in the field that would support the conclusion that 39% of
fluids remaining in the ground (1991 Palmer), should they
contain BTEX compounds would not be present in sufficient
concentrations to adversely affect underground sources of
drinking water.
EPA reiterates that the 39% figure from the 1991 Palmer
paper is only one instance where it has been documented what
quantity of the hydraulic fracturing fluids injected into
wells will remain behind. Dr. Palmer, who conducted the
original research, estimated that coalbed methane production
wells flow back a greater percentage of fracturing fluids
injected during the process. Where formations are dewatered
or produced for a substantial period of time, greater
quantities of formation and fracturing fluids would
presumably be removed. We used 39% remaining fluids as a
``worst case'' scenario while doing our qualitative
assessment, since it was the only figure we had from research
conducted on coalbed methane wells.
With respect to the BTEX compounds, we no longer believe
that they are a concern owing to the MOA negotiated between
EPA and the three major service companies.
5. Do you plan to conduct a national surveyor survey or
review to determine whether state Class II programs
adequately regulate hydraulic fracturing?
At this time, EPA has no plans to conduct such a survey or
review regarding the adequacy of Class II programs in
regulating hydraulic fracturing. In its final study design,
EPA indicated that it would not begin to evaluate existing
state regulations concerning hydraulic fracturing until it
decided to do a Phase III investigation. The Agency, however,
reserves the right to change its position on this if news
information warrants such a change.
6. In light of the Court decision and the Agency's July
2004 response to the Court remand, did the Agency consider
establishing national regulations or standards for hydraulic
fracturing or minimum requirements for hydraulic fracturing
regulations under Class II programs?
[[Page S5537]]
When State UIC programs were approved by the Agency--
primarily during the early 1980s--there was no Eleventh
Circuit Court decision indicating that hydraulic fracturing
was within the definition of ``underground injection.'' Prior
to LEAF v. EPA, EPA had never interpreted the SDWA to cover
production practices, such as hydraulic fracturing. After the
Court decision in 1997, the Agency began discussions with the
State of Alabama on revising their UIC program to include
hydraulic fracturing. The net result of that process was the
EPA approval of Alabama's revised section 1425 SDWA UIC
program to include specific regulations addressing CBM
hydraulic fracturing. This approval was signed by the
Administrator in December 1999, and published in the Federal
Register in January 2000.
In light of the Phase I HF study and our conclusion that
hydraulic fracturing did not present a significant public
health risk, we see no reason at this time to pursue a
national hydraulic fracturing regulation to protect USDWs or
the public health. It is also relevant that the three major
service companies have entered into an agreement with EPA to
voluntarily remove diesel fuel from their fracturing fluids.
7. a. If so, please provide a detailed description of your
consideration of establishing these regulations or standards
and the rationale for not pursuing them. b. Do you plan to
establish such regulations or standards in the future? c. If
not, what standards will be used as the standard of
measurement for compliance for hydraulic fracturing under
state Class II programs?
EPA has not explored in any detailed fashion minimum
national or state requirements for hydraulic fracturing of
CBM wells, except when it evaluated the revised UIC program
in Alabama.
Considering and developing national regulations for
hydraulic fracturing would involve discussions with numerous
stakeholders, the states, and the public and it would require
an intensive effort to arrive at regulatory language that
could be applied nationwide. As EPA's study indicates,
coalbeds are located in very distinct geologic settings and
the manner in which they are produced for methane gas may be
very different in each locale. The proximity of USDWs to the
coal formations, and the regional geology and hydrology all
play roles in how hydraulic fracturing operations are
conducted.
If EPA receives information of drinking water contamination
incidents and follow-up investigations point to a problem,
EPA would then re-evaluate its decision to not continue with
additional study relating to CBM hydraulic fracturing.
Should additional states submit revised UIA programs for
EPA's review and approval which include hydraulic fracturing
regulations, we would evaluate these programs under the
effectiveness standards of the SDWA section 1425 as we did
for the State of Alabama.
S. 1080
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 ``Hydraulic Fracturing Safety
Act of 2005''.
SEC. 2. HYDRAULIC FRACTURING.
Section 1421(d)(1) of the Safe Drinking Water Act (42
U.S.C. 300h(d)(1)) is amended--
(1) by adding at the end the following: ``The term
`underground injection' includes hydraulic fracturing, which
means the process of creating a fracture in a reservoir rock,
through the injection of fluids and propping agents, for the
purpose of reservoir stimulation relating to oil and gas
production activities.''; and
(2) by adding at the end the following:
``(3) Hydraulic fracturing.--
``(A) In general.--In the case of hydraulic fracturing that
occurs during the exploration for, or the production of, oil
or natural gas, a producer of oil or natural gas shall not
use diesel fuel or any other material that the Administrator
has listed as a priority pollutant under the Federal Water
Pollution Control Act (33 U.S.C. 1251 et seq.).
``(B) Regulations.--The Administrator shall promulgate such
regulations as are necessary--
``(i) to regulate hydraulic fracturing in accordance with
this subsection; and
``(ii) to ensure that State programs under section 1422 or
1425 regulate hydraulic fracturing in accordance with this
subsection.''.
______
By Mr. KYL (for himself, Ms. Stabenow, Mr. Corzine, and Mr.
Talent):
S. 1081. A bill to amend title XVIII of the Social Security Act to
provide for a minimum update for physicians' services for 2006 and
2007; to the Committee on Finance.
Mr. KYL. Mr. President, I rise today to introduce the Preserving
Patient Access to Physicians Act of 2005. This bill updates Medicare
physician reimbursement for 2006 and 2007 according to the
recommendations of the Medicare Payment Advisory Committee (MedPAC).
There would be a 2.7 percent increase to the physician payment schedule
for 2006 and using the Medicare Economic Index update for the price of
inputs, a 2.6 percent increase in 2007.
If the schedule is left alone, the consequences for physicians will
be a negative. Instead of the 1.5 percent payment increase for 2004 and
2005 which I helped author in the Medicare Modernization Act, there
would be a 4.3 percent decrease.
The sustainable growth rate (SGR) formula used to calculate physician
payment depends on a number of factors: the number of Medicare fee-for-
service beneficiaries, the volume and type of services provided, the
price of services rendered, changes in regulations and laws. The
formula also incorporates other factors such as prescription-drug
prices and the gross domestic product. The SGR was intended to control
expenditures by basing a given year's physician payment rate on the
previous year's performance. Instead, it creates an arbitrary
deficiency that continues to force Congress to intervene.
There is a debate going on, her CMS has the authority to alter the
SGR formula by removing drugs. Setting that aside, though, the fact of
the matter is that without Congress stepping in to provide for a
physician payment update, it probably will not occur. My Senate
colleagues and I have talked for many years about ensuring adequate
physician payment because current and past administrations have failed
to modify the formula. This formula is not doing what it was intended
to do. Therefore, I believe we need to scrap it and start again. My
bill is a starting point and proposes amounts for an update, but I
would really like to see us go all the way back to the drawing board
and answer the fundamental question of how to pay physicians
appropriately for their services.
I want doctors to be able to continue to assist our nation's seniors,
but it is unfair to expect them to practice and to have their
reimbursement decrease. Practice expenses, the costs of medical
technology, wages for administrative and clinical staff, and medical
liability premiums are all increasing while physicians are on track to
receive a payment decrease. They cannot afford to continue practicing
medicine while receiving reimbursements that do not allow them to even
break even. Many are retiring early or threatening to limit the number
of Medicare patients they treat.
The service of physicians all across the country is vital to our
seniors. Almost half a million doctors provide treatment to the 42
million people under the Medicare program. Physicians are often the
gateway for access to other medical services and treatments. Not being
able to consult a physician results in delayed referrals, delayed
treatment and delayed care. In sum, the quality of health care
continues to erode and our system does not operate efficiently.
Should the scheduled physician reimbursement cuts take effect, the
result will be a $710 million decrease in payments to doctors in
Arizona over 2006 through 2010. I have heard from virtually every
physician with whom I have spoken about the constraints that inadequate
payments are placing on their practice of medicine. While many work for
hospitals and health systems, in the rural areas, a large number are
solo practitioners or in small practices. For these physicians, poor
payment hits their practice especially hard.
If Medicare rates for doctors are inadequate, many other health care
payors will also lack for adequate reimbursement. Other payors such as
Medicaid and private insurers often base their payments on Medicare
rates. While this bill only addresses Medicare physician payment, the
problem of access to services will be compounded if physicians receive
reimbursement from other payors that is below the appropriate levels.
The cost of addressing the physician payment update is not cheap.
Estimates on the cost of this bill are between $25 billion to $35
billion over five years. I await an official score from the
Congressional Budget Office. But I point out, that doing nothing to
solve this problem may cost us more: more money, more health and access
problems, and more physicians leaving the profession. Although this
legislation provides for a two year update, we must develop a long
range mechanism to pay physicians appropriately.
I am grateful for the support of this legislation by my colleague,
Senator
[[Page S5538]]
Stabenow of Michigan, and encourage my other colleagues to support the
Preserving Patient Access to Physicians Act of 2005.
I ask unanimous consent that a letter of support be printed in the
Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
American Medical Association,
Chicago, IL, May 19, 2005.
Hon. John Kyl,
U.S. Senate, Hart Senate Office Building,
Washington, DC.
Dear Senator Kyl: On behalf of the American Medical
Association (AMA), we offer our strong support of your
legislation, entitled the Preserving Patient Access to
Physicians Act of 2005. We thank you for your leadership in
introducing this legislation and providing a remedy to the
steep Medicare physician payment cuts that are expected,
beginning January 1, 2006.
The Medicare Trustees have recently predicted that Medicare
payments for physicians' services will be cut by about 26
percent from 2006 through 2011. These cuts will critically
impact access to medical services for our Nation's senior and
disabled patients. A recent AMA survey concerning physician
responses to significant Medicare physician pay cuts
beginning January 1, 2006 indicates that if these cuts begin
in 2006: 38 percent of physicians plan to decrease the number
of new Medicare patients they accept; more than half of
physicians plan to defer the purchase of information
technology; and a majority of physicians will be less likely
to participate in Medicare Advantage.
The expected cuts result from the inherently flawed payment
update formula, the sustainable growth rate (SGR) spending
target. The SGR is linked to the gross domestic product and
penalizes physicians and other practitioners for volume
increases that they cannot control and that the government
actively promotes through new coverage decisions and other
initiatives that, while beneficial to patients, are not
reflected in the SGR.
The AMA applauds your leadership in addressing these cuts
and introducing legislation that protects access to needed
medical care. Your bill would provide a positive physician
payment update of not less than 2.7 percent in 2006 and an
update in 2007 that reflects physician practice cost
inflation, which, at this time, is expected to be about 2.6
percent.
Your bill is critical for ensuring continued and long-term
access to health care services for Medicare beneficiaries. We
look forward to continuing to work with you to achieve
enactment of your legislation, as well as long-term reform of
the update formula.
Sincerely,
Michael D. Maves,
Executive Vice President, CEO.
Ms. STABENOW. Mr. President, I am very pleased to introduce the
``Preserving Patient Access to Physicians Act'' with my friend and
colleague from Arizona, Senator Kyl. This legislation is critical to
ensuring that our Nation's 42 million Medicare beneficiaries continue
to have access to high quality physician care.
The Medicare program is one of the most successful Federal programs
of all time. It has lifted countless seniors out of poverty, and it has
ensured access to necessary, affordable, quality medical care for our
most vulnerable citizens for the last 40 years.
However, that success is threatened because the Medicare physician
payment formula is fundamentally flawed. At a time when the doctors who
treat our seniors are facing increasing practice costs, they are
looking at a payment cut of 4.3 percent in 2006 for the Medicare
services they provide that simply doesn't make sense.
And the cuts don't stop in 2006: if Congress doesn't act, physicians
will be hit with devastating cuts totaling 22 percent over the next 5
years. Those cuts represent over $44 billion dollars nationwide, and a
staggering $126 billion over the next 10 years.
Currently, over 20,000 MDs and DOs in Michigan treat over 1.4 million
Medicare-eligible Michiganians with very high quality care. But if the
doctors in my State receive their scheduled cut of $109 million next
year, and over $5 billion over the next ten years, it's not hard to
imagine that they may be forced to limit the number of Medicare
patients they serve.
Numbers in the billions are indeed staggering--but the critical need
for this legislation is even better demonstrated by getting down to the
specifics: a Detroit physician currently is reimbursed $56.88 for an
office visit. But while we all know medical inflation will continue to
increase, under current law, that same physician will receive only
$41.86 in 2011 for that same visit. And while an orthopedic surgeon in
Detroit is now reimbursed $1,813.10 for performing a knee
arthroplasty--a knee repair necessary to ensure full mobility--she is
scheduled to receive $478.66 less for performing that same procedure in
2011! The examples go on and on: a cardiologist inserting a stent in a
Medicare patient to prevent heart problems receives $873.85 today. The
same surgeon inserting a stent in 2011 will be reimbursed only $643.15.
The ``Preserving Patient Access to Physicians Act of 2005'' provides
physicians with a minimum update in 2006 and 2007. Specifically, the
legislation overrides the Sustainable Growth Rate (SGR) formula in
these years: the update to the single conversion factor in 2006 would
be 2.7 percent, and a formula based on input prices and a productivity
adjustment is used for 2007--the likely update for 2007 will be 2.6
percent.
Kevin Kelly, Executive Director of the Michigan State Medical
Society, tells me that the minimum updates provided in this legislation
are essential to both physicians and patients in Michigan in terms of
assuring access to Medicare services.
And Robert Stomel, D.O., President of the Michigan Osteopathic
Association, said that introduction of this legislation ``is an
important step in efforts to protect the availability and access to
physician services for millions of Medicare beneficiaries.'' Dr. Stomel
went on to say, ``This bipartisan legislation represents a continued
recognition that physician payment under Medicare must keep pace with
the increasing cost of providing care.''
Yet I know that this is just the beginning. We cannot continue to use
stop-gap measures but must replace the SGR with a payment system that
actually makes sense and reflects the costs of providing physician care
to Medicare beneficiaries.
Through the bipartisan partnership Senator Kyl and I have begun
today, we can--and must--fix the physician payment formula and continue
to provide access to high-quality Medicare services for all of our
seniors and people with disabilities.
I ask unanimous consent to have printed in the record letters of
support from the American Medical Association and the American
Osteopathic Association.
I urge my Colleagues to join us in this effort, and I thank the
Chair.
There being no objection, the letters were ordered to be printed in
the Record, as follows:
American Medical Association,
Chicago, IL, May 19, 2005.
Hon. Debbie A. Stabenow,
U.S. Senate, Washington, DC.
Dear Senator Stabenow: On behalf of the American Medical
Association (AMA), we offer our strong support of your
legislation, entitled the Preserving Patient Access to
Physicians Act of 2005. We thank you for your leadership in
introducing this legislation and providing a remedy to the
steep Medicare physician payment cuts that are expected,
beginning January 1, 2006.
The Medicare Trustees have recently predicted that Medicare
payments for physicians' services will be cut by about 26%
from 2006 through 2011. These cuts will critically impact
access to medical services for our nation's senior and
disabled patients. A recent AMA survey concerning physician
responses to significant Medicare physician pay cuts
beginning January 1, 2006 indicates that if these cuts begin
in 2006: 38% of physicians plan to decrease the number of new
Medicare patients they accept; more than half of physicians
plan to defer the purchase of information technology; and a
majority of physicians will be less likely to participate in
Medicare Advantage.
The expected cuts result from the inherently flawed payment
update formula, the sustainable growth rate (SGR) spending
target. The SGR is linked to the gross domestic product and
penalizes physicians and other practitioners for volume
increases that they cannot control and that the government
actively promotes through new coverage decisions and other
initiatives that, while beneficial to patients, are not
reflected in the SGR.
The AMA applauds your leadership in addressing these cuts
and introducing legislation that protects access to needed
medical care. Your bill would provide a positive physician
payment update of not less than 2.7% in 2006 and an update in
2007 that reflects physician practice cost inflation, which,
at this time, is expected to be about 2.6%.
Your bill is critical for ensuring continued and long-term
access to health care services for Medicare beneficiaries. We
look forward to continuing to work with you to achieve
enactment of your legislation, as well as long-term reform of
the update formula.
Sincerely,
Michael D. Maves.
[[Page S5539]]
____
American Osteopathic Association,
Washington, DC, May 19, 2005.
Hon. Debbie Stabenow,
U.S. Senate, Washington, DC.
Dear Senator Stabenow: As President of the American
Osteopathic Association (AOA), I am pleased to inform you of
our strong support for the ``Preserving Patient Access to
Physicians Act of 2005''. The AOA, which represents the
nation's 54,000 osteopathic physicians practicing in 23
specialties and subspecialties, extends its sincere gratitude
to you for introducing this bill.
The current sustainable growth rate (SGR) formula for
physician services under the Medicare program is broken. The
continued use of the flawed and unstable methodology will
result in a loss of physician services for millions of
Medicare beneficiaries. Physicians annually face reductions
in payment while their practice costs continue to rise.
Congress recognized this with the approval of the ``Medicare
Prescription Drug, Improvement, and Modernization Act of
2003'' (MMA) (P.L. 108-173) which replaced scheduled
physician payment reductions with modest increases of 1.5
percent per year for 2004 and 2005. Unfortunately, physicians
now face a projected reduction of 4.3 percent for 2006, with
additional reductions for the foreseeable future that could
amount to over 30 percent.
Your legislation takes an important step to address the
projected 2006 and 2007 reductions in physician payment under
Medicare. Specifically, the bill would establish a minimum
physician payment update of 2.7 percent per year for 2006 and
2007. A minimum update of 2.7 percent will help ensure a
physician's continued ability to provide quality health care
services to Medicare beneficiaries.
On behalf of my fellow osteopathic physicians, I pledge our
support for your effort to address the flawed Medicare
physician payment formula. We look forward to working with
you to advance this important legislation. Please do not
hesitate to call upon the AOA or our members for assistance
on health care issues. Contact the AOA's Department of
Government Relations at (202) 414-0140 for additional
information.
Sincerely,
George Thomas, D.O.,
President.
______
By Mr. KENNEDY:
S. 1084. A bill to eliminate child poverty, and for other purposes;
read the first time.
Mr. KENNEDY. Mr. President, it is shameful that in the richest and
most powerful Nation on earth, nearly a fifth of all children--nearly
13 million--live in poverty. That is why I am introducing the End Child
Poverty Act to address this fundamental moral issue. It will set a
national goal to reduce child poverty by half within a decade, and to
eliminate it entirely as soon as possible after that.
The effect of child poverty is far reaching. Children in poverty are
often malnourished. They have weaker immune systems and are more
vulnerable to infections and illness. Poor children also suffer in
school. They lack vital nutrition necessary for healthy brain
development. They have trouble concentrating in class. They often
attend schools that have the least resources. Their families move
frequently, so their school attendance is low. Overcrowding, utility
shutoffs, and poor heating interfere with homework.
The End Child Poverty Act would commit the U.S. to ending these
horrors of children growing up in such dire conditions. The bill would
establish a Child Poverty Elimination Board to make recommendations to
the President on how best to meet this commitment to children. It would
offset the cost with a one percent surtax on income over $1 million to
be invested in a Child Poverty Elimination Fund.
We must begin with this moral vision, just as we did with America's
seniors. The elderly were once the poorest in society. But in 1935, we
made a commitment that growing old shouldn't mean growing poor. We
enacted Social Security and later Medicare, and now the elderly in
America are significantly better off. The End Child Poverty Act is a
vital step to give comparable security to America's children.
It's time for America to make a real commitment, and give real hope,
real opportunity and real fairness to children and families mired in
poverty in communities in all parts of our country.
______
By Mr. HATCH:
S. 1086. A bill to improve the national program to register and
monitor individuals who commit crimes against children or sex offenses;
to the Committee on the Judiciary.
Mr. HATCH. Mr. President, we are here today in a battle to save our
children, their families, and the victims, of repeat sex offenders.
I am so proud of the real warriors in this battle: the victims and
their family members. One of those warriors is Ed Smart, from my home
State of Utah, whose daughter Elizabeth was kidnapped from her own
bedroom by a sexual predator. Ed is joined by Patti Wetterling, Linda
Walker, and other outstanding advocates of our children, including John
Walsh of America's Most Wanted, Ernie Allen of the National Center for
Missing and Exploited Children, and Robbie Calloway of the Boys & Girls
Club of America in support of this bipartisan legislation we are
introducing today along with co-sponsor Senator Biden. We need
legislation that will close the gaps in many laws already on the books;
integrate and revive the existing laws; and expand covered offenses
against children.
The Sex Offender Registration and Notification Act will bring all of
the States up to date and enable citizens in every State to inform
themselves about predators in their communities. This law will enable
States to take public information about sex offenders and make it easy
for citizens to access at one, open, web-site.
This legislation will put the responsibility on the sex offenders
themselves to register with the local authorities. They will be
required to notify those authorities when they move or change jobs. And
if they don't want to comply with the rules--then they will go to jail!
This is common sense--those who break such a sacred trust and intend
to harm our children, no matter who they are, where they are from, or
where they commit their crime, should have some obligations under this
law to voluntarily make their whereabouts known or subject themselves
to additional jail time. That's what this bill is about. It's that
simple.
The victims and victims' families have dealt with the pain and
anguish imposed on them by these sexual offenders and predators. But
instead of lying down, they are standing up for imposing common-sense
rules on those who have taken the life and liberty of the most innocent
and defenseless among us. They are standing up for tough sentences
against those who won't abide by these very simple rules. They are
standing up to say that together we are stronger.
Prior to 1994 just five states required convicted sex offenders to
register their address with local law enforcement. Today there are over
549,000 registered sex offenders in the United States. Unfortunately,
most of these receive and serve limited sentences and roam unchecked
and unknown in our communities. Their crimes are heinous and they have
a high risk of repeating their crimes on innocent children.
Under this Act, sex offenders and predators will be required to
register in person, versus mailing in a letter. They will be required
to wear a tracking device while they are on probation for a first-time
offense--and wear it for life if they choose to repeat their crimes.
This Act enables states to offer citizens a searchable, statewide sex
offender registry that interacts with all other states to provide
seamless registration and notification across the country.
The Sex Offender Notification and Registration Act will strengthen
and unite cities, communities and states in the effort to stop the
assault on American children. This bill has a companion bill in the
House, sponsored by Congressman Mark Foley and Congressman Bud Cramer.
I invite you to join Senator Biden and me as we close the gaping holes
that keep our children at risk.
______
By Mr. ALEXANDER (for himself and Mr. Schumer):
S. 1087. A bill to amend section 337 of the Immigration and
Nationality Act to prescribe the oath or affirmation of renunciation
and allegiance required to be naturalized as a citizen of the United
States; to the Committee on the Judiciary.
Mr. ALEXANDER. Today I am introducing legislation to address an
important statement on what it means to be a citizen of the United
States: the Oath of Allegiance, to which all new citizens swear in
court when they are naturalized.
In the last session of Congress, I introduced legislation to enshrine
the Oath of Allegiance in law. I was joined in that effort by 34
colleagues, including the Senator from New York, Mr.
[[Page S5540]]
Schumer, as the lead cosponsor. That legislation was introduced, in
part, in response to reports that the Bureau of Citizenship and
Immigration Services, or BCIS, an agency of the Department of Homeland
Security, may have been planning to change the Oath of Allegiance that
immigrants take to become a citizen of this nation. Other Senators and
I felt the proposed language, as reported in the press, would have
weakened the Oath.
Today, I introduce a bill that puts forward a compromise that I hope
everyone can support. I am again grateful to be joined in this effort
by the senior Senator from New York. This bill introduces a modified
Oath of Allegiance that is just as strong as the current one, but that
uses more modem language.
I was surprise to learn that Congress has never voted on the content
of this Oath. We have left it to Federal regulators. That's not how we
treat other symbols of our Nation or other statements on what it means
to be an American.
For example, the American Flag, with its 50 stars--one for each
State--and 13 stripes for the original colonies, cannot be altered by
Federal regulation. The only way a star gets added is when Congress
acts to admit a new state. And we've never changed the 13 stripes since
the flag was first adopted in 1777.
The Pledge of Alliance, which we repeat each morning in the United
States Senate, can't be altered by Federal regulation. The Pledge is a
statement of some of the values of the American Creed: ``one nation,
under God, indivisible, with liberty and justice for all.'' What if a
Federal agency decided we should take out justice, just saying ``with
liberty for all''? It can't happen: because the Pledge can only be
altered by Act of Congress, as it last was in 1954 when the phrase
``under God'' was added.
The National Motto ``In God We Trust,'' which appears on all our
coins and dollar bills, can't be altered by Federal regulation. It is a
fundamental statement of the religious character of the American
people--even though we don't permit and don't want the establishment of
state religion. The Treasury Department can't decide to leave the motto
off the next dollar bill it prints because the motto was adopted by
Congress--at first in 1864 to be printed on the 2-cent piece, an later
as the official National Motto in 1956.
Our National Anthem, the Star Spangled Banner, can't be changed by
Federal regulation. It, too, is a statement of our values, declaring
our country ``the land of the free and the home of the brave.'' If a
government agency decided it preferred America the Beautiful, or the
Battle Hymn of the Republic, or God Bless America, all of which are
great songs, the agency would have to ask Congress to act. Why? Because
the Star Spangled Banner was named our National Anthem by law in 1931.
Likewise, the Oath of Allegiance should not be altered lightly--by a
government agency, without public comment, and without approval from
Congress. Of the five symbols and statements I've described--the Flag,
the Anthem, the Pledge, the Motto, and the Oath, only the Oath of
Allegiance is legally binding on those who take it. New citizens must
take it, and they must sign it.
On September 11, 2003, when I spoke about my legislation, I said:
To be clear, I have no objection to others proposing
modifications to the Oath of Allegiance that we use today. .
. . perhaps ways can be found to make it even stronger.
Still, let's make sure any changes have the support of the
people as represented by Congress. The Oath of Allegiance is
a statement of the commitments required of new citizens.
Current citizens, through their elected representatives,
ought to have a say as to what those commitments are. That's
a lesson in democracy. A legally binding statement on
American citizenship ought to reflect American values,
including democracy.
It is in that spirit that I offer this compromise language that
prescribes an updated but very strong Oath of Allegiance. This is the
right way to go forward in considering any changes, and, I hope, will
allow us to finally enshrine this statement of what it means to be an
American in law.
______
By Mr. KYL:
S. 1088. A bill to establish streamlined procedures for collateral
review of mixed petitions, amendments, and defaulted claims, and for
other purposes; to the Committee on the Judiciary.
Mr. KYL. Mr. President, I rise today to introduce the Streamlined
Procedures Act. This legislation will reduce delays in federal courts'
review of habeas corpus petitions filed by State prisoners.
Currently, many Federal habeas corpus cases require 10, 15, or even
20 years to complete. These delays burden the courts and deny justice
to defendants with meritorious claims. They also are deeply unfair to
victims of serious, violent crimes. A parent whose child has been
murdered, or someone who has been the victim of a violent assault,
cannot be expected to ``move on'' without knowing how the case against
the attacker has been resolved. Endless litigation, and the uncertainty
that it brings, is unnecessarily cruel to these victims and their
families. As President Clinton noted of the 1996 habeas-corpus reforms,
``it should not take eight or nine years and three trips to the Supreme
Court to finalize whether a person in fact was properly convicted or
not.'' For the sake of all parties, we should minimize these delays.
The 1996 habeas corpus reforms were supposed to prevent delays in
Federal collateral review. Unfortunately, as the Justice Department
noted in testimony before the House Crime Subcommittee in March 2003,
there still are ``significant gaps [in the habeas corpus statutes] . .
. which can result in highly protracted litigation, and some of the
reforms that Congress did adopt in 1996 have been substantially
undermined in judicial application.''
The Streamlined Procedures Act is designed to fill some of these
gaps. First, the SPA imposes reasonable but firm time limits on court
of appeals' review of Federal habeas petitions. It requires a court of
appeals to decide a habeas appeal within 300 days of the completion of
briefing, to rule on a petition for rehearing within 90 days, and to
decide a case on rehearing within 120 days before the same panel, or
180 days before an en banc court.
As generous as these time limits are, they would make a real
difference in some cases. In Morales v. Woodford, 336 F.3d 1136, 9th
Cir. 2003, for example, the Ninth Circuit took 3 years to decide the
case after briefing was completed. And after issuing its decision, the
court took another 16 months to reject a petition for rehearing.
Similarly, in Williams v. Woodford, 306 F.3d 665, 9th Cir. 2002, the
court waited 25 months to decide the case--and then waited another 27
months to reject a petition for rehearing, for a total delay of almost
4\1/2\ years after appellate briefing had been completed. This is too
long for either defendants or victims to have to wait.
The SPA also bars courts of appeals from rehearing successive-
petition applications on their own motion--current law bars petitions
for rehearing or certiorari for such applications, but some courts have
interpreted this restriction to not preclude rehearing by the court of
appeals sua sponte. The SPA also bars Federal courts from tolling the
current 1-year deadline on filing habeas claims for reasons other than
those authorized by the statute, and clarifies when a State appeal is
pending for purposes of tolling the deadline.
In addition, the SPA creates uniform, clear procedures for review of
procedurally improper claims. Current judicial caselaw creates a series
of different standards for addressing claims in a Federal petition that
were not exhausted in state court, that were presented in a late
amendment, or that were procedurally defaulted. The SPA sets a uniform
standard, allowing procedurally improper claims to go forward only if
they present meaningful evidence that the defendant did not commit the
crime, with all other improper claims barred.
The SPA also expands and improves the special expedited habeas
procedures authorized in chapter 154 of the United States Code. These
procedures are available to States that establish a system for
providing high-quality legal representation to capital defendants.
Chapter 154 sets strict time limits on Federal court action and places
limits on claims. Currently, however, the court that decides whether a
State is eligible for chapter 154 is the same court that would be
subject to its time limits. Unsurprisingly, these courts
[[Page S5541]]
have proven resistant to chapter 154. The SPA would place the
eligibility decision in the hands of a neutral party--the U.S. Attorney
General, with review of his decision in the DC Circuit, which does not
hear habeas appeals. The SPA also makes chapter 154's deadlines more
practical by limiting the claims that can be raised under its
provisions to those presenting meaningful evidence that the defendant
did not commit the crime, and by extending the time for a district
court to review and rule on a chapter 154 petition from 6 months to 15
months.
The SPA also eliminates duplicative Federal review of minor
sentencing errors that already have been judged by State courts to be
harmless or not prejudicial. It limits Federal courts to asking only
whether the type of sentencing error at issue is one that could not
have been harmless.
The SPA also applies the deferential review standard enacted in the
1996 reforms to all pending cases. Remarkably, some current habeas
petitions still are not governed by the 1996 reforms. The SPA corrects
this oversight, ending the need to apply the pre-1996 legal regime to
any cases that still are being litigated today.
And finally, the SPA limits judicial review of State clemency and
pardon decisions, guaranteeing that a State won't be sued for
formalizing and regularizing its pardon procedures; it limits
defendants' ability to ask Federal courts for investigatory funds
without allowing prosecutors to be present and rebut defense
allegations; and it guarantees a crime victim's right to be notified
of, to be present at, and to speak at a criminal defendant's Federal
habeas hearing.
To many people, the issues addressed by the SPA--petitions for
rehearing, State remedies exhaustion, procedural default, chapter 154,
AEDPA deference--may seem abstract and remote. For surviving crime
victims, however, these matters can be very concrete.
A case recently in the news illustrates the importance of these
concerns: that of the man who murdered three member of the Ryen family
and Christopher Hughes in Chino Hills, California in June 1983. The
killer in that case was an escaped convict from a nearby prison. He has
since admitted that he spent 2 days hiding in a vacant house next to
the home of the Ryen family. After several unsuccessful telephone calls
to friends asking them to give him a ride, the killer took a hatchet
and buck knife from the vacant house and set out to find a vehicle. The
California Supreme Court describes the rest of what occurred, 53 Cal.3d
771, 794-95:
On Saturday, June 4, 1983, the Ryens and Chris Hughes
attended a barbecue in Los Serranos, a few miles from the
Ryen home in Chino. Chris had received permission to spend
the night with the Ryens. Between 9 and 9:30 p.m., they left
to drive to the Ryen home. Except for Josh [the Ryen's 8-
year-old son], they were never seen alive again.
The next morning, June 5, Chris's mother, Mary Hughes,
became concerned when he did not come home. A number of
telephone calls to the Ryen residence received only busy
signals. [Mary's husband] William went to the Ryen home to
investigate.
William observed the Ryen truck at the home, but not the
family station wagon. Although the Ryens normally did not
lock the house when they were home, it was locked on this
occasion. William walked around the house trying to look
inside. When he reached the sliding glass doors leading to
the master bedroom, he could see inside. William saw the
bodies of his son and Doug and Peggy Ryen on the bedroom
floor. Josh was lying between Peggy and Chris. Only Josh
appeared alive.
William frantically tried to open the sliding door; in his
emotional state, he pushed against the fixed portion of the
doors, not the sliding door. He rushed to the kitchen door,
kicked it in, and entered. As he approached the master
bedroom, he found Jessica on the floor, also apparently dead.
In the bedroom, William touched the body of his son. It was
cold and stiff. William asked Josh who had done it. Josh
appeared stunned; he tried to talk but could only make
unintelligible sounds.
William tried to use a telephone in the house but it did
not work. He drove to a neighbor's house seeking help. The
police arrived shortly. Doug, Peggy, Chris, and Jessica were
dead, the first three in the master bedroom, Jessica in the
hallway leading to that bedroom. Josh was alive but in shock,
suffering from an obvious neck wound. He was flown by
helicopter to Loma Linda University Hospital.
The victims died from numerous chopping and stabbing
injuries. Doug Ryen had at least 37 separate wounds, Peggy
32, Jessica 46, and Chris 25. The chopping wounds were
inflicted by a sharp, heavy object such as a hatchet or axe,
the stabbing wounds by a weapon such as a knife.
The escaped prisoner who committed this crime was caught 2 months
later. Again, he admitted that he stayed in the house next door, but
denied any involvement in the murders. According to the California
Supreme Court, however, the evidence of defendant's guilt was
``overwhelming.'' Not only had the defendant stayed at the vacant house
right next door at the time of the murders; the hatchet used in the
murders was taken from the vacant house; shoe prints in the Ryen house
matched those in the vacant house and were from a type of shoe issued
to prisoners; bloody items, including a prison-issue button, were found
in the vacant house; prison-issue tobacco was found in the Ryen station
wagon, which was recovered in Long Beach; and defendant's blood type
and hair matched that found in the Ryen house. Defendant was convicted
of the murders and sentenced to death in 1985, and the California
Supreme Court upheld the defendant's conviction and sentence in 1991.
The defendant's Federal habeas proceedings began shortly thereafter,
and they continue to this day--22 years after the murders. In 2000, the
defendant asked the courts for DNA testing of a blood spot in the Ryen
house, a t-shirt near the crime scene, and the tobacco found in the
car. Despite the overwhelming evidence of his guilt, the courts allowed
more testing. All three tests found that the blood and saliva matched
defendant, to a degree of certainty of one in 320 billion. Blood on the
t-shirt matched both the defendant and one of the victims.
One might have thought that this would end the case. Not so. In
February 2004, the en banc Ninth Circuit sua sponte authorized
defendant to file a second habeas petition to pursue theories that
police had planted this DNA evidence. Since the evidence had been in
court custody since 1983, the Ninth Circuit's theory not only required
police to plan and execute a vast conspiracy to plant the evidence--it
also required them to foresee the future invention of the DNA
technology that would make that evidence useful in future habeas
proceedings.
The Streamlined Procedures Act would have made a difference in this
case. For example, it would have eliminated the need to return to state
court to exhaust new claims, reducing the delay in the Federal
proceedings by nearly 3 years. It would have applied the 1996 reforms
to this case, allowing deferential review of state factual findings and
legal analysis. It would have placed time limits on Federal appeals
court decisionmaking and grants of rehearing. And it would have
prevented the court of appeals from ordering rehearing of the
defendant's successive-petition application on its own motion, thereby
barring the current round of O.J. Simpson-style conspiracy-theory
litigation. The SPA could have brought this case to closure a long time
ago.
And this case deserves to be brought to closure. One cannot
underestimate the grievous impact that crimes like these have on the
families of the victims. Mary Hughes, the mother of 11-year-old
Christopher Hughes, who was sleeping over at the Ryen house on the
night of the murders, has spoken movingly of the loss of her son:
Christopher Hughes loved his bicycle, swimming and showing
off for his mom and dad.
The 11-year-old's bedroom was filled with swimming trophies
and Star Wars collectibles. He was a handsome kid who was
chased by a lot of fifth-grade girls on the playground during
recess at Our Lady of the Assumption in Claremont.
He wasn't short on friends, either.
Christopher really liked Joshua Ryen, an 8-year-old boy who
lived up the street from him. They would trick-or-treat
together on Halloween, play together, and their parents were
good friends.
On the night of June 4 1983, Christopher asked his parents
if he could spend the night at the Ryen house.
It was a decision that would change the Hughes family
forever.
[Mary Hughes'] son Christopher would have been 32 today.
She sometimes wonders who he would have been, what he
would've looked like, and even during her most solemn
moments, she wonders what life would've been like if Cooper
had never gone to the Ryens' house.
``It never really ever gets better,'' she said. ``Kevin
Cooper robbed him of the chance to be a child, to attend his
first dance, to have a girlfriend, and to one day get married
and
[[Page S5542]]
have kids of his own. He robbed me of my child.''
Mary Ann Hughes does have one special memory of her son she
holds close to her heart. A week before his death, she took
him to see the movie ``Return of the Jedi.''
``He was so happy. It was such a great day,'' she said.
``It seems like such a small thing, but it's the best memory
I have of both of us.'' (Sara Carter, ``He Was at the
Beginning of His Life When He Died,'' Inland Valley Daily
Bulletin, February 9, 2004.)
In light of how much the surviving family already has suffered, one
might expect that all participants in the criminal proceedings would
take great concern and care for the feelings of the family.
Unfortunately, that has not been the case. The Ninth Circuit has proved
willing to turn the appeals into a three-ring circus, allowing
continual pursuit of the most frivolous conspiracy theories. The impact
of these now 22 years of trial and appeals on the victims' families has
been predictable: they feel that they and the victims have become
irrelevant to the entire process. Shortly after the Ninth Circuit
authorized an additional round of appeals in this case, a local
newspaper described what the families have experienced:
For nearly 20 years, since convicted murderer Kevin Cooper
was sentenced to death for the 1983 slayings of a Chino Hills
family and their young houseguest, families of the victims
have waited silently for the day the hand of justice would
grant them peace.
For those families, the last two decades have seemed like
an eternity.
``I lived through a nightmare,'' said Herbert Ryen, whose
brother Douglas Ryen was among those killed, along with
Douglas' wife Peggy, their 11-year-old daughter Jessica, and
her 10-year-old friend Christopher Hughes.
[O]n the morning of Feb. 9, [2004,] the day of Cooper's
scheduled death by lethal injection, word came down that the
9th U.S. Circuit Court of Appeals had decided to block the
execution.
[T]o the Ryen and Hughes families, the stay just hours
before Cooper's scheduled execution at San Quentin State
Prison was nearly incomprehensible. The indefinite delay has
left them in a sort of emotional limbo, questioning whether
the legal system had abandoned them.
``The bottom line is that this whole issue is not about
Kevin Cooper . . . it is about the death penalty,'' said Mary
Ann Hughes, the mother of Christoper Hughes. ``We're so mad--
mad because we feel as though the courts turned their back on
my son.''
``They (Court of Appeals) are holding us hostage,'' Hughes
said.
For Herbert Ryen and his wife Sue, waiting for justice has
taken an equally destructive toll on their lives. The torment
their family experienced following the murders, and the
subsequent years lost to depression, could never be replaced,
he said from his home in Arizona.
Mary Ann Hughes said the pain her family suffers is only
amplified by the seemingly continuous bombardment of
celebrities campaigning against Cooper's execution. She
wonders who will cry out in anger for the victims.
One former television star and anti-death penalty activist,
Mike Farrell of the popular series MASH, spoke of the case on
a recent news program.
``He claimed that we must feel relieved since the stay of
execution was granted,'' Hughes said. ``How can (Farrell)
have the audacity to say he knows what we are feeling?''
Farrell could not be reached for comment.
Since Christopher's death, the Hughes family has chosen to
remain out of the media spotlight. And until recently, their
efforts were successful, due largely to the support of their
surviving children, family members and a strong network of
close friends, Hughes said.
The court's decision Feb. 9 has re-opened the case, forcing
the families to re-live the nightmare they have fought so
hard to leave behind, they say.
Mary Ann Hughes is left wondering about other families who
have had loved ones taken from them, about the legal battles
they have had to endure in their own quests for justice.
She thinks of the parents of Samantha Runion, the 5-year-
old Orange County girl who was murdered in 2003, and of what
her family could face in the next 20 years.
For Bill Hughes, the anguish is intensified--he will
forever know the pain of walking into the Ryens' home the
morning after the murders, and finding his son, dead and
covered in blood near the Ryens' bedroom door. He was also
the first to discover Joshua Ryen, also drenched in blood,
clinging to life.
``It is a memory he will always have to live with,'' Mary
Ann Hughes said.
Indeed, time has been no friend to the victims' families,
as California's recent appellate court ruling has further
denied them closure, she added.
``What this decision has done to our legal system in
California is unthinkable,'' she said. ``Somewhere along the
line, the courts have got to uphold the law, and we will wait
it out until they do.'' (Sara Carter, ``Families of Murder
Victims Wait for Justice in Cooper Case,'' Inland Valley
Daily Bulletin, February 24, 2004.)
Mary Hughes' story demonstrates why the use of Federal judicial power
must be measured and fair it illustrates the heavy cost imposed by
judicial excess.
No statement, however, better explains the gross cruelty caused by
allowing endless litigation and appeals in a case like this than that
given by one of the surviving victims of the 1983 attack. Josh Ryen was
8 years old when he was stabbed in his parents' bedroom and his parents
and sister were murdered. He is now 30 years old. On April 22, 2005, he
gave a statement pursuant to the recently enacted Crime Victims' Rights
Act in the federal habeas corpus hearing for his parents and sister's
killer. I will close my remarks by asking unanimous consent that Josh
Ryen's statement be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Statement of Joshua Ryen, United States District Court for the District
of San Diego
April 22, 2005.--The first time I met Kevin Cooper I was 8
years old and he slit my throat. He hit me with a hatchet and
put a hole in my skull. He stabbed me twice, which broke my
ribs and collapsed one lung. I lived only because I stuck
four fingers in my neck to slow the bleeding, but I was too
weak to move. I laid there 11 hours looking at my mother who
was right beside me.
I know now he came through the sliding glass door and
attacked my dad first. He was lying on the bed and was struck
in the dark without warning with the hatchet and knife. He
was hit many times because there is a lot of blood on the
wall on his side of the bed.
My mother screamed and Cooper came around the bed and
started hitting her. Somehow my dad was able to struggle
between the bed and the closet but Cooper bludgeoned my
father to death with the knife and hatchet, stabbing him 26
times and axing him 11. One of the blows severed his finger
and it landed in the closet. My mother tried to get away but
he caught her at the bottom of the bed and he stabbed her 25
times and axed her 7.
All of us kids were drawn to the room by mom's screams.
Jessica was killed in the doorway with 5 ax blows and 46
stabs. I won't say how many times my best friend Chris was
stabbed and axed, not because it isn't important, but because
I don't want to hurt his family in any way, and they are
here.
After Cooper killed everyone, and thought he had killed me,
he went over to my sister and lifted her shirt and drew
things on her stomach with the knife. Then he walked down the
hallway, opened the refrigerator, and had a beer. I guess
killing so many people can make a man thirsty.
I don't want to be here. I came because I owe it to my
family, who can't speak for themselves. But by coming I am
acknowledging and validating the existence of Kevin Cooper,
who should have been blotted from the face of the earth a
long time ago. By coming here it shows that he still controls
me. I will be free, my life will start, the day Kevin Cooper
dies. I want to be rid of him, but he won't go away.
I've been trying to get away from him since I was 8 years
and I can't escape. He haunts me and follows me. For over 20
years all I've heard is Kevin Cooper this and Kevin Cooper
that. Kevin Cooper says he is innocent, Kevin Cooper says he
was framed, Kevin Cooper says DNA will clear him, Kevin
Cooper says blood was planted, Kevin Cooper says the tennis
shoes aren't his, Kevin Cooper says three guys did it, Kevin
Cooper says police planted evidence, Kevin Cooper gets
another stay from another court and sends everyone off on
another wild goose chase.
The courts say there isn't any harm when Kevin Cooper gets
another stay and another hearing. This just shows they don't
care about me, because every time he gets another delay I am
harmed and have to relive the murders all over again. Every
time Kevin Cooper opens his mouth everyone wants to know what
I think, what I have to say, how I'm feeling, and the whole
nightmare floods all over me again: the barbecue, me begging
to let Chris spend the night, me in my bed and him on the
floor beside me, my mother's screams, Chris gone, dark house,
hallway, bushy hair, everything black, mom cut to pieces
saturated in blood, the nauseating smell of blood, eleven
hours unable to move, light filtering in, Chris' father at
the window, the horror of his face, sound of the front door
splintering, my pajamas being cut off, people trying to save
me, the whap whap of the helicopter blades, shouted
questions, everything fading to black.
Every time Cooper claims he's innocent and sends people
scurrying off on another wild goose chase, I have to relive
the murders all over again. It runs like a horror movie, over
and over again and never stops because he never shuts up. He
puts PR people on national television who say outrageous
things and then the press wants to know what I think. What I
think is that I would like to be rid of Kevin Cooper. I would
like for him to go away. I would like to never hear from
Kevin Cooper again. I would like Kevin Cooper to pay for what
he did.
I dread happy times like Christmas and Thanksgiving. If I
go to a friend's house on
[[Page S5543]]
holidays I look at all the mothers and fathers and children
and grandchildren and get sad because I have no one. Kevin
Cooper took them from me.
I get terrified when I go into any place dark, like a house
before the lights are on. I hear screams and see flashbacks
and shadows. Even with lights on I see terrible things. After
I was stabbed and axed I was too weak to move and stared at
my mother all night. I smelled this overpowering smell of
fresh blood and knew everyone had been slaughtered.
Every day when I comb my hair I feel the hole where he
buried the hatchet in my head, and when I look in the mirror
I see the scar where he cut my throat from ear to ear and I
put four fingers in it to stop the bleeding which, they say,
saved my life. Every year I lose hearing in my left ear where
he buried the knife.
Helicopters give me flashbacks of life flight and my
Incredible Hulks being cut off by paramedics. Bushy hair
reminds me of the killer. Silence reminds me of the quiet
before the screams. Cooper is everywhere. There is no escape
from him.
I feel very guilty and responsible to the Hughes family
because I begged them to let Chris spend the night. If I
hadn't done that he wouldn't have died. I apologize to them
and especially to Mr. Hughes for having to find us and see
his son cut and stabbed to death.
I thank the judge who gave my grandma custody of me because
she took good care of me and loves me very much.
I'm grateful to the ocean for giving me peace because when
I go there I know my mother and father and sister's ashes are
sprinkled there.
Kevin Cooper has movie stars and Jesse Jackson holding
rallies for him, people carrying signs, lighting candles,
saying prayers. To them and you I say:
I was 8 when he slit my throat,
It was dark and I couldn't see.
Through the night and day I laid there,
trying to get up and flee.
He killed my mother, father, sister, friend,
And started stalking me.
I try to run and flee from him but cannot get away,
While he demands petitions and claims, some fresh absurdity.
Justice has no ear for me nor cares about my plight,
while crowds pray for the killer and light candles in the
night.
To those who long for justice and love truth which sets men
free, When you pray
your prayers tonight, please remember me.
______
By Mr. AKAKA (for himself, Mr. Cochran, and Mr. Dodd):
S. 1089. A bill to establish the National Foreign Language
Coordination Council to develop and implement a foreign language
strategy, and for other purposes; to the Committee on Health,
Education, Labor, and Pensions.
Mr. AKAKA. Mr. President, today I rise to introduce the National
Language Coordination Act of 2005 which provides a framework for
leading and coordination the learning of foreign languages and
cultures, with my good friends Senators Cochran and Dodd.
The National Foreign Language Coordination Act would create the
position of a National Language Director and a National Foreign
Language Coordination Council to develop and oversee the implementation
of a foreign language strategy. The proposed Council, chaired by the
National Language Director, would identify crucial priorities, increase
public awareness of the need for foreign language skills, advocate
maximum use of resources, coordinate cross-sector efforts, and monitor
the foreign language activities of the Federal Government.
The genesis of this legislation is a report entitled, ``A Call to
Action for National Foreign Language Capabilities,'' issued by the
National Language Conference held in June 2004 under the auspices of
the Department of Defense. This conference was an extraordinary
gathering of government, industry, academia, and language association
representatives. The mission of this meeting was twofold: to discuss
and deliberate initial strategic approaches to meeting the nation's
language needs in the 21st century, and to identify actions that could
move the United States toward a ``language-competent nation.'' It was
hosted by the Office of the Under Secretary of Defense for Personnel
and Readiness and by the Center for Advanced Study of Language (CASL)
at the University of Maryland at College Park.
I ask unanimous consent that the executive summary of the report, ``A
Call to Action for National Foreign Language Capabilities,'' be printed
in the Record following my remarks.
I believe the recommendations of this report speak eloquently to the
need for this legislation. As Dr. David Chu, Undersecretary of Defense
for Personnel and Readiness, notes in his forward to the report,
``improving the nation's foreign language capability requires immediate
and long-term engagement.''
The intent of this legislation is to ensure that immediate and long-
term engagement.
The establishment of a National Language Director and the creation of
a National Foreign Language Coordination Council will ensure that the
key recommendations of the Department of Defense sponsored conference
will be implemented, which include: developing policies and programs
that build the nation's language and cultural understanding capability;
engaging federal, state, and local agencies and the private sector in
solutions; developing language and cultural competency across public
and private sectors; developing language skills in a wide range of
critical languages; strengthening our education system, programs, and
tools in foreign languages and cultures; and integrating language
training into career fields and increase the number of language
professionals.
The terrorist attacks of September 11, 2001, showed how much more was
needed to improve education in these critical areas. The investigations
surrounding the attacks have underscored how important foreign language
proficiency is to our national security. The Joint Intelligence
Committee inquiry into the terrorist attacks found that prior to
September 11, the Intelligence Community was not prepared to handle the
challenge of translating the volumes of foreign language counter-
terrorism intelligence that had been collected. Agencies within the
Intelligence Community experienced backlogs in material awaiting
translation and a shortage of language specialists and language-
qualified field officers in the most critical terrorism-related
languages used by terrorists.
America needs people who understand foreign cultures and who are
fluent in locally-spoken languages. The stability and economic vitality
of the United States and our national security depend on American
citizens who are knowledgeable about the world. We need civil servants,
including law enforcement officers, teachers, area experts, diplomats,
and business people with the ability to communicate at an advanced
level in the languages and understand the cultures of the people with
whom they interact.
Experts tell us we should develop long-term relationships with people
from every walk of life all across the world, whether or not the
languages they speak are considered critical for a particular issue or
emergency.
They are right.
As then-Deputy Secretary of Defense Paul Wolfowitz noted at the
National Language Conference, ``The greater our ability to communicate
with people, the easier the burden on our troops and the greater the
likelihood that we can complete our missions and bring our people home
safely. Even better, the greater our linguistic skill, the greater the
possibility that we can resolve international differences and achieve
our objectives without having to use force.''
I am proud of my own State of Hawaii, whose language patterns reflect
that we are a mixing pot of varying cultures. According to the 2000
Census, more than 300,000 people or about 27 percent of those five
years and older spoke a language other than English at home. This is
compared to about 18 percent nationwide. Language education offerings
to improve conversational proficiency with formal training in non-
English languages are working to keep pace with increased demand. In
addition, enrollments in foreign language courses at the University of
Hawaii have been markedly increasing--a trend that I am gratified to
see happening across the country. But more needs to be done both in
Hawaii and the rest of the country.
I am a passionate believer in beginning these programs at the
earliest age possible. Americans need to be open to the world; we need
to be able to see the world through the eyes of others if we are going
to understand how to resolve the complex problems we face.
The need to hear and understand one another is timeless and
essential.
An ongoing commitment to developing language and cultural expertise
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helps prevent a crisis from occurring and provides diplomatic and
language resources when needed. We cannot afford to seek out foreign
language skills after an event like 9/11 occurs. The failures of
communication and understanding have already done their damage. We must
provide an ongoing commitment to language education and encourage
knowledge of foreign languages and cultures.
The answer is simple. If we are committed to maintaining these
relationships and creating a language proficient citizenry, we must
have leadership. The National Foreign Language Coordination Act will
provide this leadership and ensure that we are aware and involved in
the world around us.
I ask unanimous consent that the text of the bill be printed in the
Record.
I urge my colleagues to support this important legislation.
There being no objection, the materials were ordered to be printed in
the Record, as follows:
Executive Summary--A Call to Action and Leadership
Vision: Our vision is a world in which the United States is
a stronger global leader through proficiency in foreign
languages and understanding of the cultures of the world.
These abilities are strengths of our public and private
sectors and pillars of our educational system. The
government, academic, and private sectors contribute to, and
mutually benefit from, these national capabilities.
The terrorist attacks of September 11th, the Global War on
Terrorism, and the continued threat to our Homeland have
defined the critical need to take action to improve the
foreign language and cultural capabilities of the Nation. We
must act now to improve the gathering and analysis of
information, advance international diplomacy, and support
military operations. We must act to retain our global market
leadership and succeed against increasingly sophisticated
competitors whose workforces possess potent combinations of
professional skills, knowledge of other cultures, and
multiple language proficiencies. Our domestic well-being
demands action to provide opportunities for all students to
learn foreign languages important for the Nation, develop the
capabilities of our heritage communities, and ensure services
that are core to our quality of life.
Success in this crucial undertaking will depend on
leadership strong enough to:
Implement policies, programs, and legislation that build
the national language and cultural understanding capability;
Engage Federal, state, and local agencies and the private
sector in solutions;
Develop language and cultural competency across public and
private sectors;
Develop language skills in a wide range of critical
languages;
Strengthen our education system, programs, and tools in
foreign languages and cultures; and
Integrate language training into career fields and increase
the number of language professionals, especially in the less
commonly taught languages.
Leadership must be comprehensive, as no one sector--
government, industry, or academia--has all of the needs for
language and cultural competency, or all of the solutions.
Some actions must be initiated immediately by specific
agencies and Federal Departments should organize to work on
proposed recommendations. Other necessary solutions must be
long-term, strategic, and `` involve multiple organizations
in all levels. To accomplish this agenda, the Nation needs:
A National Language Authority appointed by the President to
develop and implement a national foreign language strategy;
A National Foreign Language Coordination Council to
coordinate implementation of the national foreign language
strategy.
This is the Call to Action to move the Nation toward a 21st
century vision.
S. 1089
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 ``National Foreign Language
Coordination Act of 2005''.
SEC. 2. FINDINGS.
Congress finds that--
(1) there is a severe shortage of qualified language
professionals, including teachers, translators, and
interpreters, especially in less commonly taught languages,
across the United States;
(2) Federal, State, and local governments need individuals
with bilingual and bicultural capabilities, including--
(A) diplomats;
(B) defense and intelligence analysts;
(C) military personnel;
(D) foreign language instructors;
(E) health professionals;
(F) medical and social services providers;
(G) court interpreters;
(H) translators; and
(I) law enforcement officers;
(3) deficiencies in the national language capabilities
have--
(A) undermined cross-cultural communication and
understanding at home and abroad;
(B) restrained social mobility;
(C) lessened national commercial competitiveness;
(D) limited the effectiveness of public diplomacy;
(E) restricted justice and government services to sectors
of society; and
(F) threatened national security;
(4) ample resources are not available to develop language
and cultural capabilities in all of the world's languages,
requiring prioritization of such resources; and
(5) a National Foreign Language Coordination Council and a
National Language Director can help to raise public awareness
and provide top-down coordination and direction.
SEC. 3. ESTABLISHMENT OF THE NATIONAL FOREIGN LANGUAGE
COORDINATION COUNCIL.
(a) Establishment.--There is established the National
Foreign Language Coordination Council (referred to as the
``Council'' in this Act), which shall be an independent
establishment as defined under section 104 of title 5, United
States Code.
(b) Membership.--The Council shall consist of the following
members or their designees:
(1) The National Language Director, who shall serve as the
chairperson of the Council.
(2) The Secretary of Education.
(3) The Secretary of Defense.
(4) The Secretary of State.
(5) The Secretary of Homeland Security.
(6) The Attorney General.
(7) The Director of National Intelligence.
(8) The Secretary of Labor.
(9) The Director of the Office of Personnel Management.
(10) The Director of the Office of Management and Budget.
(11) The Secretary of Commerce.
(12) The Secretary of Health and Human Services.
(13) The Secretary of the Treasury.
(14) The Secretary of Housing and Urban Development.
(15) The Secretary of Agriculture.
(16) The heads of such other Federal agencies as the
Council considers appropriate.
(c) Responsibilities.--
(1) In general.--The Council shall be charged with--
(A) developing a national foreign language strategy within
18 months of the date of enactment of this Act; and
(B) overseeing the implementation of such strategy.
(2) Strategy content.--The strategy developed under
paragraph (1) shall include--
(A) identification of crucial priorities across all
sectors;
(B) identification and evaluation of Federal foreign
language programs and activities, including--
(i) recommendations on coordination;
(ii) program enhancements; and
(iii) allocation of resources so as to maximize use of
resources;
(C) needed national policies and corresponding legislative
and regulatory actions in support of, and allocation of
designated resources to, promising programs and initiatives
at all levels (Federal, State, and local), especially in the
less commonly taught languages that are seen as critical for
national security and global competitiveness in the next 20
to 50 years;
(D) effective ways to increase public awareness of the need
for foreign language skills and career paths in all sectors
that can employ those skills, with the objective of
increasing support for foreign language study among--
(i) Federal, State, and local leaders;
(ii) students;
(iii) parents;
(iv) elementary, secondary, and postsecondary educational
institutions; and
(v) potential employers;
(E) incentives for related educational programs, including
foreign language teacher training;
(F) coordination of cross-sector efforts, including public-
private partnerships;
(G) coordination initiatives to develop a strategic posture
for language research and recommendations for funding for
applied foreign language research into issues of national
concern;
(H) assistance for--
(i) the development of foreign language achievement
standards; and
(ii) corresponding assessments for the elementary,
secondary, and postsecondary education levels, including the
National Assessment of Educational Progress in foreign
languages;
(I) development of--
(i) language skill-level certification standards;
(ii) an ideal course of pre-service and professional
development study for those who teach foreign language;
(iii) suggested graduation criteria for foreign language
studies and appropriate non-language studies, such as--
(I) international business;
(II) national security;
(III) public administration; and
(IV) health care; and
(J) identification of and means for replicating best
practices at all levels and in all sectors, including best
practices from the international community.
(d) Meetings.--The Council may hold such meetings, and sit
and act at such times and places, as the Council considers
appropriate, but shall meet in formal session at least 2
times a year. State and local government agencies and other
organizations (such as
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academic sector institutions, foreign language-related
interest groups, business associations, industry, and
heritage community organizations) shall be invited, as
appropriate, to public meetings of the Council at least once
a year.
(e) Staff.--
(1) In general.--The Director may appoint and fix the
compensation of such additional personnel as the Director
considers necessary to carry out the duties of the Council.
(2) Details from other agencies.--Upon request of the
Council, the head of any Federal agency may detail, on a
reimbursable basis, any of the personnel of such agency to
the Council.
(3) Experts and consultants.--With the approval of the
Council, the Director may procure temporary and intermittent
services under section 3109(b) of title 5, United States
Code.
(f) Powers.--
(1) Delegation.--Any member or employee of the Council may,
if authorized by the Council, take any action that the
Council is authorized to take in this Act.
(2) Information.--The Council may secure directly from any
Federal agency such information the Council considers
necessary to carry out its responsibilities. Upon request of
the Director, the head of such agency shall furnish such
information to the Council.
(3) Donations.--The Council may accept, use, and dispose of
gifts or donations of services or property.
(4) Mail.--The Council may use the United States mail in
the same manner and under the same conditions as other
Federal agencies.
(g) Conferences, Newsletter, and Website.--In carrying out
this Act, the Council--
(1) may arrange Federal, regional, State, and local
conferences for the purpose of developing and coordinating
effective programs and activities to improve foreign language
education;
(2) may publish a newsletter concerning Federal, State, and
local programs that are effectively meeting the foreign
language needs of the nation; and
(3) shall create and maintain a website containing
information on the Council and its activities, best practices
on language education, and other relevant information.
(h) Reports.--Not later than 90 days after the date of
enactment of this Act, and annually thereafter, the Council
shall prepare and transmit to the President and Congress a
report that describes the activities of the Council and the
efforts of the Council to improve foreign language education
and training and impediments, including any statutory and
regulatory restrictions, to the use of each such program.
SEC. 4. ESTABLISHMENT OF A NATIONAL LANGUAGE DIRECTOR.
(a) In General.--There is established a National Language
Director who shall be appointed by the President. The
National Language Director shall be a nationally recognized
individual with credentials and abilities across all of the
sectors to be involved with creating and implementing long-
term solutions to achieving national foreign language and
cultural competency.
(b) Responsibilities.--The National Language Director
shall--
(1) develop and oversee the implementation of a national
foreign language strategy across all sectors;
(2) establish formal relationships among the major
stakeholders in meeting the needs of the Nation for improved
capabilities in foreign languages and cultural understanding,
including Federal, State, and local government agencies,
academia, industry, labor, and heritage communities; and
(3) coordinate and lead a public information campaign that
raises awareness of public and private sector careers
requiring foreign language skills and cultural understanding,
with the objective of increasing interest in and support for
the study of foreign languages among national leaders, the
business community, local officials, parents, and
individuals.
(c) Compensation.--The National Language Director shall be
paid at a rate of pay payable for a position at level V of
the Executive Schedule under section 5316 of title 5, United
States Code.
SEC. 5. ENCOURAGEMENT OF STATE INVOLVEMENT.
(a) State Contact Persons.--The Council shall consult with
each State to provide for the designation by each State of an
individual to serve as a State contact person for the purpose
of receiving and disseminating information and communications
received from the Council.
(b) State Interagency Councils and Lead Agencies.--Each
State is encouraged to establish a State interagency council
on foreign language coordination or designate a lead agency
for the State for the purpose of assuming primary
responsibility for coordinating and interacting with the
Council and State and local government agencies as necessary.
SEC. 6. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as
necessary to carry out this Act.
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