[Congressional Record Volume 156, Number 105 (Thursday, July 15, 2010)]
[Senate]
[Pages S5966-S5972]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. JOHANNS:
S. 3593. A bill to require the Federal Government to pay the costs
incurred by a State or local government in defending a State or local
immigration law that survives a constitutional challenge by the Federal
Government in Federal court; to the Committee on the Judiciary.
Mr. JOHANNS. Mr. President, I rise to discuss a bill I have
introduced because I see a very unfair battle unfolding right in front
of us. The battle I foresee is this: In one corner we have the enormous
resources of the Federal Government; in the other corner, cities and
States with very limited resources, especially in these economic times,
but with a good-faith desire to protect their communities.
What I am speaking of today and what my legislation goes to is the
Federal Government's use of litigation to insert itself into State and
potentially local immigration laws.
I rise with a great deal of knowledge about this. As a former mayor
and county commissioner, city council member and Governor, I know what
it is like when the Federal Government swoops in and brings its power
to bear on an issue. I have seen it from both sides, having also served
as a member of the President's Cabinet. I know that when the resources
of the Federal Government are used to weigh in with litigation, it is
crushing. The administration can send in a team of lawyers and
overwhelm the resources of a community or a State. Litigation brings
with it a huge financial burden for cities and States. In fact,
litigation can and does have a chilling effect on the local
decisionmaking process, even if local leaders believe their action in
good faith is appropriate and necessary.
I believe that is the exact reaction this administration is hoping to
cause among communities and States across the Nation that are
considering action on immigration issues.
In this case, I believe litigation is being used to send a warning to
other communities, other States that might be considering taking action
in this arena.
The administration's claim that the Federal Government has sole
authority to enforce immigration laws because of the supremacy clause
of the Constitution is, in fact, inconsistent with the President's own
internal policies. Just last year, President Obama authored a memo,
sent it out to all Federal departments and agencies, requiring serious
and careful consideration when using Federal preemption of State laws.
In this memo, dated May 20, 2009, with the subject ``Preemption,''
the President stated:
The purpose of this memorandum is to state the general
policy of my Administration that preemption of State law by
executive departments and agencies should be taken only with
full consideration of legitimate prerogatives of the States
and with sufficient legal basis for preemption.
That seems clear. But the memo went on further to say:
Executive departments and agencies should be mindful that
in our Federal system, the citizens of the several States
have distinctive circumstances and values, and that in many
instances it is appropriate for them to apply to themselves
rules and principles that reflect those circumstances and
values.
Then, finally, the President goes on to say:
It is one of the happy incidents of the federal system that
a single courageous state may, if its citizens choose, serve
as a laboratory; and try novel social experimental
experiments without risk to the rest of the country.
Mr. President, I ask unanimous consent that a copy of this memo be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
The White House,
Office of the Press Secretary,
May 20, 2009.
Memorandum for the Heads of Executive Departments and Agencies
Subject: Preemption
From our Nation's founding, the American constitutional
order has been a Federal system, ensuring a strong role for
both the national Government and the States. The Federal
Government's role in promoting the general welfare and
guarding individual liberties is critical, but State law and
national law often operate concurrently to provide
independent safeguards for the public. Throughout our
history, State and local governments have frequently
protected health, safety, and the environment more
aggressively than has the national Government.
An understanding of the important role of State governments
in our Federal system is reflected in longstanding practices
by executive departments and agencies, which have shown
respect for the traditional prerogatives of the States. In
recent years, however, notwithstanding Executive Order 13132
of August 4, 1999 (Federalism), executive departments and
agencies have sometimes announced that their regulations
preempt State law, including State common law, without
explicit preemption by the Congress or an otherwise
sufficient basis under applicable legal principles.
The purpose of this memorandum is to state the general
policy of my Administration that preemption of State law by
executive departments and agencies should be undertaken only
with full consideration of the legitimate prerogatives of the
States and with a sufficient legal basis for preemption.
Executive departments and agencies should be mindful that in
our Federal system, the citizens of the several States have
distinctive circumstances and values, and that in many
instances it is appropriate for them to apply to themselves
rules and principles that reflect these circumstances and
values. As Justice Brandeis explained more than 70 years ago,
``[i]t is one of the happy incidents of the federal system
that a single courageous state may, if its citizens choose,
serve as a laboratory; and try novel social and economic
experiments without risk to the rest of the country.''
To ensure that executive departments and agencies include
statements of preemption in regulations only when such
statements have a sufficient legal basis:
(1) Heads of departments and agencies should not include in
regulatory preambles statements that the department or agency
intends to preempt State law through the regulation except
where preemption provisions are also included in the codified
regulation.
(2) Heads of departments and agencies should not include
preemption provisions in codified regulations except where
such provisions would be justified under legal principles
governing preemption, including the principles outlined in
Executive Order 13132.
(3) Heads of departments and agencies should review
regulations issued within the past 10 years that contain
statements in regulatory preambles or codified provisions
intended by the department or agency to preempt State law, in
order to decide whether such statements or provisions are
justified under applicable legal principles governing
preemption. Where the head of a department or agency
determines that a regulatory statement of preemption or
codified regulatory provision cannot be so justified, the
head of that department or agency should initiate appropriate
action, which may include amendment of the relevant
regulation.
Executive departments and agencies shall carry out the
provisions of this memorandum to the extent permitted by law
and consistent with their statutory authorities. Heads of
departments and agencies should consult as necessary with the
Attorney General and the Office of Management and Budget's
Office of Information and Regulatory Affairs to determine how
the requirements of this memorandum apply to particular
situations.
This memorandum is not intended to, and does not, create
any right or benefit, substantive or procedural, enforceable
at law or in equity by any party against the United States,
its departments, agencies, or entities, its officers,
employees, or agents, or any other person.
The Director of the Office of Management and Budget is
authorized and directed to publish this memorandum in the
Federal Register.
Barack Obama.
Mr. JOHANNS. So if the use of Federal power to preempt a State
requires such an extremely high threshold, how can one reconcile that
with the administration's decision to file a lawsuit?
My bill sends a message to the administration that it cannot use the
crushing force and threat and reality of litigation to intimidate local
officials or to scare them into inaction.
It would allow a State or a municipal government the ability, the
right, to recover attorney's fees and other court costs associated with
defending a Federal challenge of their immigration laws. In other
words, this straightforward legislation just simply levels
[[Page S5967]]
the playing field between the huge power of the Federal Government in
one corner, as I said, and the right of local communities in States to
pass laws to protect their citizens.
It carries this simple message to any administration: If you file a
lawsuit and lose, cities and States will not face depleted resources as
a result.
My bill ensures that when the Federal Government takes on communities
in court, the reasons are pure and based in law or else the impact on
our communities will be neutralized.
The administration should focus time and resources on what is the
crux of this issue; that is, securing our borders and doing the job and
enforcing existing immigration laws and not using litigation as a tool
to send a message.
I encourage my colleagues to sign on and cosponsor this commonsense
measure and level the playing field for communities when they are
forced to defend themselves against the enormous, nearly unlimited
power of the Federal Government.
______
By Mr. NELSON of Florida:
S. 3594. A bill to amend the Magnuson-Stevens Fishery Conservation
and Management Act to mitigate the economic impact of the transition to
sustainable fisheries on fishing communities, and for other purposes;
to the Committee on Commerce, Science, and Transportation.
Mr. NELSON of Florida. Mr. President, I would like to speak about
fishing, a very important special pastime and industry for the Nation.
Fishing in Florida is a way of life for many. The small bait and tackle
shops, the hotels, the restaurants, the charter boat captains, and the
parents who want to see their children marvel when they pull a fish out
of the ocean for the first time rely on being able to access the water.
In fact, just last week, a Washington Post article traced the path of
fish caught in the Florida Keys and off of Florida's East Coast to a
Whole Foods market here in the DC area. And sadly, the Deepwater
Horizon has shown us how much healthy, high-quality seafood comes out
of the Gulf of Mexico every year.
In 2007, the Congress reauthorized the Magnuson-Stevens Fishery
Conservation and Management Act. The Magnuson Act has certainly done
some good things to ensure the long-term viability of our Nation's
fishery resources. But some of the provisions of the law have had major
unintended consequences in Florida.
I have spoken before about the need for robust science on the status
of our oceans and our fishery stocks. In fact, most recently, I worked
with Gulf Coast Senators to get funding in the Supplemental
Appropriations bill for fisheries science in the Gulf of Mexico. But
despite the potential influx of dollars, fisheries data for the
Southeast in particular, is still sparse. This lack of data has lead to
a crisis in confidence amongst many in the fishing community. Here is
why.
The 2007 Magnuson-Stevens Reauthorization contained a 2010 deadline
to end overfishing. But the justification for that deadline rested on
two assumptions. First, that there would be recent and accurate stock
assessments. Second, that there would be improved catch data. I think
the National Oceanic and Atmospheric Administration is doing the best
they can with available resources to gather this data. However, for
years good data from recreational anglers has been a challenge but
because of the changes to Magnuson-Stevens, regulations are coming out
faster than the data used to support them.
Having that hard and fast 2010 deadline created a situation where the
resource managers are left without options. This has led to closures of
large geographic areas to all fishing with no end on the horizon. These
closures have devastated small businesses that rely on fishing and left
many frustrated that they cannot access the same waters that they
always could.
Being a native Floridian, I know that many people develop a love for
the ocean and a desire to protect it after they truly experience it by
swimming, fishing off their boat, or listening to the waves. This
access is a necessary component of conservation because the public
gains a sense of ownership and this leads to a sense of responsibility.
That is why I am filing the Fishery Conservation Transition Act
today. The bill will enable individuals, businesses, and communities to
make a smooth transition while the science catches up by creating a
phase-in period for Federal fishing regulations and requiring enhanced
data collection in the interim. It also allows for economic assistance
for those who are negatively impacted by management measures.
Others have proposed different solutions to this problem, but I
believe that my bill is a targeted solution that gives resource
managers options to allow access to the water in a way that will also
achieve conservation goals.
There are provisions in the bill that require fishery managers to use
the transition time wisely and research creative solutions to complex
management issues, like how to manage multispecies fisheries in a way
that protects the vulnerable stocks but still allows for access. This
bill is also about jobs. Small businesses that rely on the fishing
industry can ride out these difficult economic times without
sacrificing the resource their businesses rely on.
I hope that my colleagues in the Senate will support this effort to
provide a smooth transition to sustainable fisheries, healthy economic
prospects for small businesses, access to the oceans and natural
resources, and robust science.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 3594
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Fishery Conservation
Transition Act''.
SEC. 2. TRANSITION TO SUSTAINABLE FISHERIES.
(a) In General.--Within 180 days after the close of fishing
year 2010 (within the meaning given that term in the
Magnuson-Stevens Fishery conservation and Management Act (16
U.S.C. 1802 et seq.), the Secretary of Commerce shall
determine, with respect to each fishery for which a fishery
management plan that meets the requirements of section
303(a)(15) of that Act (16 U.S.C. 1853(a)(15)) is in effect
that contains a complete prohibition on the retention of
stocks subject to overfishing within the fishery for the
entire fishing season, whether the prohibition is sufficient
to prevent or end overfishing for the stocks, or stocks
undergoing overfishing, to which it applies.
(b) Remedial Action.--If the Secretary determines that the
prohibition contained in such a fishery management plan is
not sufficient to prevent or end overfishing for the stocks
to which it applies, the Secretary may authorize retention of
fish that are not undergoing overfishing within that fishery,
notwithstanding that discard mortality of stocks for which
retention is prohibited may be inconsistent with provisions
on ending or preventing overfishing, if, within 90 days after
a determination by the Secretary under subsection (a), the
Regional Fishery Management Council with jurisdiction over
the fishery implements--
(1) measures to minimize bycatch and bycatch mortality to
the extent practicable;
(2) an enhanced data collection requirement, such as an
electronic logbook data collection system, for recreational,
for hire, and commercial fishers; and
(3) a program of on-board observers for charter, for-hire,
and commercial fishers that will monitor and collect data on
bycatch and bycatch mortality in multispecies fisheries with
prohibitions on retention on one or more species in the
fisheries; and
(4) in coordination with the Secretary, other measures to
ensure accountability of the fishery, including those that
will substantially contribute to addressing data gaps in
stock assessments.
(c) Additional Requirements.--The Secretary shall take such
action as may be necessary to ensure that, with respect to
any stock subject to overfishing in a fishery to which a
determination under subsection (b) applies--
(1) a monitoring and research program to monitor the
recovery of the affected stocks of fish is implemented for
the fishery within 1 year after the date of enactment of this
Act;
(2) a stock assessment for the overfished species within
the affected stocks of fish is initiated, taking into account
relevant life history of the stock, within 6 months after the
date on which the Secretary makes such a determination; and
(3) the Regional Fishery Management Council with
jurisdiction over the affected fishery submits a report to
Congress and the Secretary detailing a long-term plan for
reducing discard mortality of the affected stocks of fish to
which a determination under subsection (a) applies within 2
years after the date of enactment of this Act.
(d) Further Action Required.--If the Secretary determines
that--
(1) the Regional Fishery Management Council with
jurisdiction over a fishery has complied with the
requirements of paragraphs (b) and (c), and
[[Page S5968]]
(2) the fishery management plan's prohibition on the
retention of stocks subject to overfishing continues to be
insufficient to prevent or end over-fishing for those stocks,
the Secretary shall take such action as may be necessary to
end overfishing for the stocks to which the prohibition
applies before the end of fishery year 2015.
SEC. 3. ECONOMIC ASSISTANCE PROGRAM.
(a) In General.--Section 208 of the Magnuson-Stevens
Fishery Conservation and Management Reauthorization Act of
2006 (16 U.S.C. 1891b) is amended--
(1) by striking ``and'' after the semicolon in subsection
(b)(6);
(2) by striking ``materia.'' in subsection (b)(7) and
inserting ``materia; and'';
(3) by adding at the end of subsection (b) the following:
``(8) the economic assistance program under subsection
(f).'';
(4) by striking ``and'' after the semicolon in subsection
(c)(2)(A);
(5) by striking ``section.'' in subsection (c) (2)(B) and
inserting ``section; and'';
(6) by adding at the end of subsection (c)(2) the
following.:
``(C) fees collected under permit programs for a fishery
significantly affected by a prohibition on the retention of
stocks to end or prevent overfishing.''; and
(7) by adding at the end thereof the following:
``(f) Economic Assistance Program.--
`` (1) In general.--The Secretary shall establish an
economic assistance program to assist recreational and
commercial fishery participants, fishing industries, and
fishing communities significantly affected by a prohibition
on the retention of stocks to end or prevent overfishing or
rebuild overfished stocks and use amounts in the Fund to
provide such assistance.
``(2) Criteria for assistance.--In the administration of
the program, the Secretary shall develop criteria for
prioritizing economic assistance requests, including
consideration of the conservation and management history of
the fishery, the sustainability of conservation and
management approaches, the magnitude of the economic impact
of the retention prohibition, and community and social
impacts.
``(3) Application process.--The Secretary shall develop an
application process to determine eligibility for economic
assistance under the program and shall consult with States
whose recreational and commercial fishery participants,
fishing industries, or fishing communities have been affected
by the prohibition. Any person or community seeking
assistance under the program shall submit an application at
such time, in such manner, and containing such information
and assurances as the Secretary may require.
``(4) State matching funds.--The Federal share of
assistance provided under the program to recreational and
commercial fishery participants, fishing industries, or
fishing communities may not exceed 75 percent. Before
granting assistance under the program, the Secretary shall
consult with the State in which the recipient is located and
request that the State provide matching funds. The Secretary
may waive, in whole or in part, the matching requirement
under this paragraph.''.
SEC. 4. AUTHORITY TO ACT.
(a) Clarification of Emergency Authority.--Section 305(c)
of the Magnuson-Stevens Fishery Conservation and Management
Act (16 U.S.C. 1855(c)) is amended by adding at the end the
following:
``(4) For purposes of this section, an emergency is a
situation that results from recent, unforeseen, or recently
discovered circumstances that present serious conservation or
management problems in the fishery, including ecological,
economic, social, or public health interests. An emergency
may include increasing or decreasing a catch limit, or
modifying a time or area closure or retention prohibition in
response to new science or stock assessment information, but
only if such action is needed to address serious conservation
or management problems in the fishery.''.
SEC. 5. FISHERY STUDIES AND REPORTS.
(a) Status of Fishery Report.--Section 304(e) of the
Magnuson-Stevens Fishery Conservation and Management Act (16
U.S.C. 1854(e)) is amended--
(1) by inserting ``(A)'' before ``The Secretary'';
(2) by redesignating subparagraphs (A) and (B) as clauses
(i) and (ii); and
(3) by adding at the end the following:
``(B) In the review, the Secretary shall consider--
``(i) a stock assessment conducted pursuant to subsection
(c);
``(ii) an analysis of the local, regional, and national
social and economic impacts on fishing communities and
industries directly and indirectly related to the fishery;
and
``(iii) fishery management measures to enhance the
sustainability of stocks of fish that are overfished, and an
evaluation of alternative management approaches that may be
implemented to enhance such sustainability.
``(C) Stock assessment updates for each stock of fish that
is overfished or undergoing overfishing shall be conducted at
2 year intervals, and a full stock assessment pursuant to
subsection (c) shall be conducted no less frequently than
once every 5 years.
``(D) The Secretary shall include a summary of reviews
conducted under subparagraph (A) in the report required by
paragraph (1) of this subsection. To the extent possible, the
Secretary shall include in the report recommendations for
actions that could be taken to encourage the sustainable
management of stocks of fish listed in the Fish Stocks
Sustainability Index.''.
(b) Assessment of Current Management Measures.--
(1) In general.--The Secretary of Commerce shall conduct a
study, in cooperation with the National Academy of Sciences,
to determine if current fishery management measures for
stocks in a multi-species fishery yield the most productive
use of marine resources while effectively conserving
sustainable populations and a healthy marine ecosystem. The
study shall include--
(A) the identification of the statutory and regulatory
impediments to achieving the maximum sustainable yield from
the entire fishery;
(B) the identification of fishery independent environmental
stressors on the fishery;
(C) the economic value derived from the yield in the
fishery; and
(D) alternative fishery management measures and
technologies which would result in increased economic and
harvest yields consistent with sound conservation.
(2) Report.--Within 180 days after the date of enactment of
this Act, the Secretary shall transmit a report to the Senate
Committee on Commerce, Science, and Transportation and the
House of Representatives Committee on Natural Resources
containing the Secretary's findings, conclusions, and
recommendations.
SEC. 6. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to the Secretary of
Commerce such sums as may be necessary to carry out the
provisions of this Act and the amendments made by this Act.
______
By Mrs. HAGAN:
S. 3596. A bill to establish the Culture of Safety Hospital
Accountability Study and Demonstration Program; to the Committee on
Finance.
Mrs. HAGAN. Mr. President, today I am proud to introduce the Culture
of Safety Hospital Accountability Act. This bill will test alternatives
to the current, inflexible system to ensure that hospitals are meeting
the highest health and safety standards for their patients.
Under the current system, the Centers for Medicare and Medicaid, or
CMS, requires hospitals participating in Medicare and Medicaid to
comply with Conditions of Participation--health and safety standards
established by CMS for the protection of Medicare and Medicaid
beneficiaries. CMS contracts with State agencies to perform inspections
of hospitals, nursing homes, and other health care facilities to ensure
compliance.
However, there are significant deficiencies in the current system. A
major concern among hospitals is CMS' assignment of Immediate Jeopardy,
which puts hospitals on a 23-day fast-track to losing their Medicare
and Medicaid funding. Right now, the only remedy that CMS has when a
hospital receives a citation is termination. There is no flexibility to
consider the incident on a case-by-case basis--or even to consider
whether the hospital self-reported and immediately corrected the
incident. Moreover, current procedures fail to consider the substantial
resources and efforts that hospitals are already investing in quality
improvement and patient safety.
Take, for example, a hospital in my State, which last year got a 23-
day termination notice after they self-reported that one of their
nurses had H1N1. The hospital immediately sent the nurse home and, as I
mentioned, immediately reported the incident to CMS. Nevertheless, the
hospital was required to undergo an inspection and submit the requisite
plan of correction to CMS. The agency was not able to process the
paperwork until day 22 of the 23-day notice, causing undue stress for
the community as they wondered whether the hospital was going to be
forced to close its doors.
In addition to the uncertainty for the hospital, the human resources
required and costs incurred to implement this inflexible system are
enormous. Once a hospital is cited as out of compliance with their
Condition of Participation, the State CMS inspectors are required to
survey the entire hospital and any other hospitals under the same CMS
provider number. In the case of the hospital I just mentioned, it took
State inspectors an entire week with 17 staff to survey their hospital
system.
To address this inflexibility in the current system, I am introducing
the Culture of Safety Hospital Accountability Act. This bill would do
three things:
First, it would require the Secretary of Health and Human Services to
study
[[Page S5969]]
existing quality assurance and patient safety activities within
hospitals and identify best practices that should be replicated.
Second, it would create a demonstration program among hospitals,
State health care agencies, and HHS to promote and implement best
practices for improving patient safety and quality of care. HHS would
identify up to 6 States and not more than 24 hospitals to participate
in a 3-year demonstration program.
Finally, the bill would authorize the Secretary of HHS to promulgate
regulations modifying termination agreements regarding health and
safety requirements with hospitals and critical access hospitals to
better ensure compliance, prevent recurrence of violations, and improve
internal structures and processes that address patient quality and
safety.
Patient safety must be first and foremost, and it is not the intent
of the demonstration project to keep CMS or State inspectors out of
hospitals, nor to impair the remedies CMS needs to address quality
issues. Instead, the bill will help to explore how CMS, State
regulatory authorities, and hospitals can work collaboratively to
address quality and safety issues in ways that will ensure the best
quality of care for patients.
______
By Mr. CARDIN:
S. 3602. A bill to amend title 23, United States Code, to direct the
Secretary to establish a comprehensive program to control and treat
polluted stormwater runoff from federally funded highways and roads,
and for other purposes; to the Committee on Environment and Public
Works.
Mr. CARDIN. Mr. President, today I am proud to introduce legislation
that will help prevent millions of gallons of pollution from entering
our Nation's precious water resources. The season we are in makes my
legislation particularly timely. Spring is one of the wettest times of
year, and with every Spring shower polluted stormwater runoff washes a
myriad of chemicals pollutants, sediment, debris, oil and grease, and
other contaminates from our Nation's roads and highways into our lakes,
rivers, streams, bays, and coastal waters.
Stormwater is the nation's largest source of water pollution. While
rain itself contains air pollution particulates that are deposited in
every drop, most stormwater pollution is picked up on the surface and
carried off as runoff. Stormwater washes contaminants like oil, grease,
heavy metals, nutrients, asbestos, sediments, road salts and other de-
icing agents, brake dust, and road debris from the millions of miles of
America's roads and into storm drains that discharge into nearby
waters. Almost all of this polluted stormwater is discharged without
any treatment.
When rain falls on these hard, impervious surfaces it often has no
where to go but down the channels created by curbs and retaining walls,
into storm drains and into the nearest natural water body. According to
research compiled by the National Oceanic & Atmospheric
Administration's, NOAA, National Geophysical Data Center, the U.S. is
covered by more than 112,600 square kilometers of impervious surfaces.
That is a space larger than the State of Ohio. With 985,139 miles of
federal aid highways stretching from every corner of the country,
polluted highway runoff is no small problem facing our nation's waters.
The effects of polluted stormwater runoff are real. For example, the
Anacostia River--Washington's ``other'' and often forgotten river--can
be seen from the Capitol Dome as it flows out of Prince George's
County, Maryland, and into the District and on to its confluence with
the Potomac. Runoff from within the 176 square mile watershed of the
Anacostia, most of which is in Maryland, but also includes the east
side of DC and the entire Capitol complex, all makes its way into the
Anacostia. The stormwater that enters the Anacostia is extremely
polluted from the thousands of acres of road surfaces that cover the
watershed, which exacerbates the incidence of combined sewer overflows
and has impaired the Anacostia for many years. It is no coincidence
that the U.S. Fish & Wildlife Service has found the Anacostia's bottom-
feeder catfish to have the highest incidence of liver tumors than any
other population of catfish in the country. The cause of the tumors are
the high levels of polycyclic aromatic hydrocarbons, a by-product of
fuel combustion, that come from vehicle tailpipe emissions and are
deposited on the road and in the air and then washed into the river
with every shower or thunderstorm.
This is not a problem unique to Maryland or the Chesapeake Bay
region, nor is it a problem unique to urban environments as opposed to
rural environments. Polluted runoff is a problem that affects any
watershed where impervious paved road and highway surfaces have altered
the natural hydrology of a watershed. Over time, Federal highway policy
has come to recognize the drastic impacts highways and surface
transportation can have on the environment and on water quality. Title
23 of the U.S. Code states: ``transportation should play a significant
role in promoting economic growth, improving the environment, and
sustaining the quality of life'' through the use of ``context sensitive
solutions.'' The Intermodal Surface Transportation Efficiency Act,
ISTEA, authorized using transportation enhancement funds for
``environmental mitigation to address water pollution due to highway
runoff.'' It's important to note, however, that this is just one of 12
types of eligible enhancement projects and only 1.1 percent of
enhancement project funds have gone toward environmental mitigation
projects since 1992.
In 2008, at the request of the House Transportation & Infrastructure
Committee, the Government Accountability Office issued a report
examining key issues and challenges that need to be addressed in the
next reauthorization of the transportation bill. That report
highlighted the clear link between transportation policy and the
environment. Taking a policy approach to require that the planning,
design, and construction of highways are done in an environmentally
responsible manner, with an eye toward mitigating the water quality
impacts highways have on our Nation's water resources, will help
address this issue and better meet our Nation's transportation goals.
This legislation also helps advance the October 5, 2009, Executive
Order affirming that Federal policy and Federal agencies shall
``conserve and protect water resources through efficiency, reuse, and
stormwater management; eliminate waste, recycle, and prevent pollution;
and leverage agency acquisitions to foster markets for sustainable
technologies and environmentally preferable materials, products and
services.''
The approach my legislation takes to mitigate polluted highway runoff
is through the implementation of a minimum design standard, developed
by the United States Department of Transportation, that requires the
maintenance or restoration of the pre-development hydrology of a
Federal-aid highway project site. This same approach was made law by
the Energy Independence & Security Act of 2007 for the development of
new Federal buildings and facilities.
My bill would require that all significant Federal highway projects
must be planned and designed ``to maintain or restore, to the maximum
extent technically feasible, the predevelopment hydrology of the
project site with regard to the temperature, rate, chemical
composition, volume and duration of flow'' of stormwater. This would be
achieved by approaches that avoid and minimize alteration of natural
features and hydrology and maximize the use of onsite pollution control
measures using existing terrain and natural features.
My bill also recognizes that geography and other physical
characteristics of the land may not always allow on-site treatment of
polluted highway runoff. When conditions are impracticable my
legislation would allow for an ``appropriate off-site runoff pollution
mitigation program'' within the watershed of a Federal-aid highway
project site that can protect against the water quality impacts of the
project.
The Clean Water Act requires that we protect the waters of the United
States. As with most pollution abatement strategies, preventing
stormwater pollution is cheaper, more effective, and easier to
implement than trying to clean up and remediate the problem after the
contamination has occurred.
Not addressing stormwater pollution at its source just kicks the
proverbial
[[Page S5970]]
can down the road for someone else's attention. When water resources
are contaminated by polluted highway runoff, mitigating the pollution,
which is a preventable discharge in the first place, should not be the
responsibility of local governments, wastewater treatment facilities,
or drinking water utilities.
Water pollution has many sources and our Nation's highways produce a
tremendous volume of contaminated stormwater. Time and time again,
experience has taught us that addressing pollution at its source is the
most effective means of abating pollution. It is time we applied this
principle to our Nation's Federal-aid highways. I urge my colleagues to
support my legislation and help move our country closer to meeting the
goals of the Clean Water Act and the goals of our national
transportation policy.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 3602
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Safe Treatment of Polluted
Stormwater Runoff Act'' or the ``STOPS Runoff Act''.
SEC. 2. FEDERAL-AID HIGHWAY RUNOFF POLLUTION MANAGEMENT
PROGRAM.
(a) In General.--Chapter 3 of title 23, United States Code,
is amended by adding at the end the following:
``Sec. 330. Federal-aid highway runoff pollution management
program
``(a) Establishment.--The Secretary shall establish a
Federal-aid highway runoff pollution management program to
ensure that covered projects are constructed in accordance
with minimum standards designed to protect surface and ground
water quality.
``(b) Project Approval.--The Secretary may approve a
covered project of a State under section 106 only if the
State provides assurances satisfactory to the Secretary that
the State will construct the project in accordance with the
minimum standards described in subsection (c).
``(c) Minimum Standards.--The following minimum standards
shall apply to the construction of covered projects to
maintain or restore, to the maximum extent technically
feasible, the predevelopment hydrology of the project site
with regard to the temperature, rate, chemical composition,
volume and duration of flow:
``(1) Avoid and minimize alteration of natural features and
hydrology and maximize use of pollution source control
measures that utilize existing terrain and natural features
and reduce chemical introduction to reduce creation of
pollution on the project site.
``(2) Maximize capture of highway runoff pollution on the
project site through pretreatment and treatment, including
environmental site design techniques and other control
measures that promote evapotransporation and infiltration.
``(3) Prevent any remaining highway runoff pollution not
addressed under paragraphs (1) and (2) to the maximum extent
practicable by implementing one or more of the following
control measures selected through a watershed-based
environmental management or equivalent approach:
``(A) Pretreatment and treatment of runoff with appropriate
control measures on the project site.
``(B) Discharge of highway runoff pollution directly to an
off-site control measure under the control of the State with
documented capacity to provide functionally and
quantitatively equivalent management of runoff pollution to
that required to achieve the minimum standards of this
subsection for the design life of the project.
``(C) If the control measures in subparagraphs (A) and (B)
are found impracticable based on site conditions or other
appropriate factors, and an appropriate off-site runoff
pollution mitigation program is in place, contribution to a
mitigation program that will produce functionally and
quantitatively equivalent management of runoff pollution to
that required to achieve the minimum standards. Under this
subparagraph, priority shall be given to off-site control
measures that address the impacts of runoff pollution to
waterways that are listed as impaired in the same or adjacent
8-digit Hydrologic Unit Code as the project site.
``(d) Guidance.--
``(1) In general.--Not later than 180 days after the date
of enactment of this section, the Secretary, with the
concurrence of the Administrator of the Environmental
Protection Agency, shall publish guidance to assist States in
complying with the requirements of this section.
``(2) Contents of guidance.--The guidance shall include
guidelines for the establishment of State processes and
programs that will be used to assist in managing highway
runoff pollution from covered projects in accordance with the
minimum standards described in subsection (c), including--
``(A) guidance to help States integrate the planning,
selection, design, and long-term operation and maintenance of
control measures consistent with the minimum standards in the
overall project planning process;
``(B) creation of a watershed-based environmental
management approach to assist projects in achieving
consistency with the minimum standards;
``(C) guidelines for the development and utilization of
off-site runoff pollution mitigation programs to achieve
compliance with the minimum standards; and
``(D) provisions for State inspection, monitoring, and
reporting to document State compliance and project
consistency with this section.
``(e) Limitation on Statutory Construction.--Nothing in
this section shall be construed to affect the applicability
of any provision of Federal, State, or local law that is more
stringent than the requirements of this section.
``(f) Reporting.--The Secretary shall require each State to
report annually to the Secretary on the highway runoff
pollution reductions achieved for covered projects carried
out by the State after the date of enactment of this section.
``(g) Definitions.--In this section, the following
definitions apply:
``(1) Control measure.--The term `control measure' means a
program, structural or nonstructural management practice,
operational procedure, or policy on or off the project site
that is intended to control, reduce, or prevent highway
runoff pollution.
``(2) Covered project.--The term `covered project' means a
project carried out under this title for--
``(A) construction of a new highway or associated facility;
``(B) construction of a Federal-aid highway runoff control
measure retrofit; or
``(C) construction of a significant Federal-aid highway
improvement.
``(3) Federal-aid highway runoff control measure
retrofit.--The term `Federal-aid highway runoff control
measure retrofit' means the installation or modification of a
control measure for highway runoff pollution serving a
Federal-aid highway or associated facility originally
constructed before the date of enactment of this section.
``(4) Highway runoff pollution.--The term `highway runoff
pollution' means in relation to a Federal-aid highway,
associated facility, or control measure retrofit projects one
or more of the following--
``(A) a discharge of sediment, metals, bacteria, chemicals,
nutrients, or oil and grease in runoff; or
``(B) a discharge of peak flow rate, water temperature, and
volume of runoff that exceeds predevelopment amounts
generated from a Federal-aid highway, associated facility, or
control measure retrofit project that violates the water
quality standards of the receiving water set by the Federal
Water Pollution Control Act (33 U.S.C. 125 et seq.) and
related State programs.
``(5) Significant federal-aid highway improvement.--The
term `significant Federal-aid highway improvement' means the
rehabilitation, reconstruction, reconfiguration, renovation,
or major resurfacing of an existing Federal-aid highway or
associated facility that disturbs 5 or more acres of land.
``(6) Watershed-based environmental management approach.--
The term `watershed-based environmental management approach'
means an approach under which--
``(A) the selection of solutions that prevent or minimize
the environmental impact of an individual project is made
within the broader context of the environmental protection
and restoration goals of any watershed that drains the
project site, rather than selecting solutions solely based on
site level considerations; and
``(B) priority consideration is given to--
``(i) protection of drinking water supplies;
``(ii) protection and restoration of waterways listed by a
State as impaired in accordance with section 303(d) of the
Federal Water Pollution Control Act (33 U.S.C. 1313(d));
``(iii) preservation of aquatic ecosystems and fisheries;
and
``(iv) cost-effective expenditure of Federal funds.''.
(b) Effective Date.--The provisions of this legislation
will be effective and applicable to construction of Federal-
Aid Highway projects as defined in subsection (g)(2) 1 year
after enactment.
(c) Clerical Amendment.--The analysis for chapter 3 is
amended by adding at the end the following:
``330. Federal-aid highway runoff pollution management program.''.
______
By Ms. CANTWELL:
S. 3603. A bill to amend the Oil Pollution Act of 1990 to establish
the Federal Oil Spill Research Committee and to amend the Federal Water
Pollution Control Act to include in a response plan certain planned and
demonstrated investments in research relating to discharges of oil and
to modify the dates by which a response plan is required to be updated;
to the Committee on Commerce, Science, and Transportation.
Mr. President, over 21 years ago the tanker Exxon Valdez, en route
from Valdez, Alaska, to Los Angeles, failed to turn back into the
shipping lane after detouring to avoid ice. At 12:04 a.m., it ran
aground on Bligh Reef in Prince William Sound.
[[Page S5971]]
Within six hours, the Exxon Valdez spilled 11 million gallons of
crude oil into the Sound's pristine waters and wrote itself into the
history books as--at that time--the worst oil spill ever in U.S.
waters. Eventually, oil covered 11,000 square miles of ocean.
The environmental and economic damage is impossible to both fathom
and assess; countless seabirds, marine mammals, and fish were killed.
As a result, companies like the Chugach Alaska Corporation went
bankrupt. There were huge losses to recreational sports, fisheries, and
tourism. And 21 years later there is still oil in the area.
Today, we are re-living a similar nightmare--only this time on an
even larger scale. The BP oil spill in the Gulf of Mexico, triggered by
the explosion of the Deepwater Horizon oil rig and the failure of its
safety systems, has shattered all previous records as the single
largest marine oil spill in our Nation's history. Even today, oil
continues to gush from the uncapped well, furthering the devastation to
the Gulf of Mexico's environment and economy.
The Exxon Valdez showed us just how unprepared we were in 1989, and
the BP oil spill is showing us today how unprepared we are in 2010.
While the Oil Pollution Act of 1990 has been successful in achieving
many of its policy goals, the BP oil spill is proving to us that oil
spill response technology remains largely stagnant, and that our
response infrastructure remains inadequate.
This is why I rise today to introduce the Oil Spill Technology and
Research Act.
This legislation is designed to address the massive gap in oil spill
research and development that has contributed to our inability to
respond to the BP oil spill. It will: put mechanisms in place that will
foster continuous research and development on oil spill response
methods and technologies; provide an incentive structure for
translating new technologies from ideas into reality; and continuously
add new layers to our oil spill safety net.
This is an important step in the right direction to improve our
Nation's ability to contain and clean up oil spills in the future.
It is a proclamation that we are not going to allow complacency back
at the wheel, nor are we going to allow politics to get in the way of
doing what is right.
Twenty-one years ago we saw the devastating costs of complacency, and
we are living that nightmare again today. It is up to us to ensure that
this country's environment, economy, and people are protected with the
greatest rigor that we can muster. Our oceans, coasts, and citizens
deserve nothing less.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 3603
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Oil Spill Technology and
Research Act of 2010''.
SEC. 2. FEDERAL OIL SPILL RESEARCH COMMITTEE.
(a) In General.--Section 7001 of the Oil Pollution Act of
1990 (33 U.S.C. 2761) is amended to read as follows:
``SEC. 7001. FEDERAL OIL SPILL RESEARCH COMMITTEE.
``(a) Establishment.--There is established a committee, to
be known as the `Federal Oil Spill Research Committee'
(referred to in this section as the `Committee').
``(b) Membership.--
``(1) Composition.--The Committee shall be composed of--
``(A) at least 1 representative of the National Oceanic and
Atmospheric Administration;
``(B) at least 1 representative of the Coast Guard;
``(C) at least 1 representative of the Environmental
Protection Agency; and
``(D) at least 1 representative of each of such other
Federal agencies as the President considers to be
appropriate.
``(2) Chairperson.--The Under Secretary of Commerce for
Oceans and Atmosphere (referred to in this section as the
`Under Secretary') shall designate a Chairperson from among
members of the Committee who represent the National Oceanic
and Atmospheric Administration.
``(3) Meetings.--At a minimum, the members of the Committee
shall meet once each quarter.
``(c) Duties of the Committee.--
``(1) Research.--The Committee shall--
``(A) coordinate a comprehensive program of oil pollution
research, technology development, and demonstration among the
Federal agencies, in cooperation and coordination with
industry, institutions of higher education, research
institutions, State governments, tribal governments, and
other countries, as the Committee considers to be
appropriate; and
``(B) foster cost-effective research mechanisms, including
the joint funding of research.
``(2) Reports on current state of oil discharge prevention
and response capabilities.--
``(A) In general.--Not later than 180 days after the date
of enactment of the Oil Spill Technology and Research Act of
2010, the Committee shall submit to Congress a report on the
state of oil discharge prevention and response capabilities
that--
``(i) identifies current research programs conducted by
governments, universities, and corporate entities;
``(ii) assesses the current status of knowledge on oil
pollution prevention, response, and mitigation technologies;
``(iii) establishes national research priorities and goals
for oil pollution technology development relating to
prevention, response, mitigation, and environmental effects;
``(iv) identifies regional oil pollution research needs and
priorities for a coordinated program of research at the
regional level developed in consultation with the State and
local governments and Indian tribes;
``(v) assesses the current state of discharge response
equipment, and determines areas in need of improvement,
including with respect to the quantity, age, quality, and
effectiveness of equipment, or necessary technological
improvements;
``(vi) assesses--
``(I) the current state of real-time data available to
mariners, including data on water level, currents, and
weather (including predictions); and
``(II) whether a lack of timely information increases the
risk of oil discharges; and
``(vii) includes such other information or recommendations
as the Committee determines to be appropriate.
``(B) 5-year updates.--Not later than 5 years after the
date of enactment of the Oil Spill Technology and Research
Act of 2010, and every 5 years thereafter, the Committee
shall submit to Congress a report updating the information
contained in the previous report submitted under subparagraph
(A).
``(d) Research and Development Program.--
``(1) In general.--In carrying out the duties of the
Committee under subsection (c)(1), the Committee shall
establish a program to conduct oil pollution research and
development.
``(2) Program elements.--The program established under
paragraph (1) shall provide for research, development, and
demonstration of new or improved technologies and methods
that are effective in preventing, detecting, or responding
to, mitigating, and restoring damage from oil discharges and
that protect the environment, including each of the
following:
``(A) High priority research areas described in the reports
under subsection (c)(2).
``(B) Environmental effects of acute and chronic oil
discharges on coastal and marine resources, including impacts
on protected areas and protected species.
``(C) Long-term effects of major discharges and the long-
term cumulative effects of smaller endemic discharges.
``(D) New technologies to detect accidental or intentional
overboard discharges.
``(E) Response, containment, and removal capabilities, such
as improved booms, oil skimmers, and storage capacity.
``(F) Oil discharge risk assessment methods, including the
identification of areas of high risk and potential risk
reductions for the prevention of discharges.
``(G) Capabilities for predicting the environmental fate,
transport, and effects of oil discharges, including
prediction of the effectiveness of discharge response systems
to contain and remove oil discharges.
``(H) Methods to restore and rehabilitate natural resources
and ecosystem functions damaged by oil discharges.
``(I) Research and training, in consultation with the
National Response Team, to improve the ability of industry
and the Federal Government to remove an oil discharge quickly
and effectively.
``(J) Oil pollution technology evaluation.
``(K) Any other priorities identified by the Committee.
``(3) Implementation plan.--
``(A) In general.--Not later than 180 days after the date
of submission of the report under subsection (c)(2)(A), the
Committee shall submit to Congress a plan for the
implementation of the program required by paragraph (1).
``(B) Assessment by national academy of sciences.--The
Chairperson of the Committee, acting through the
Administrator of the National Oceanic and Atmospheric
Administration, shall enter into an arrangement with the
National Academy of Sciences under which the National Academy
of Sciences shall--
``(i) provide advice and guidance in the preparation and
development of the plan required by subparagraph (A); and
``(ii) assess the adequacy of the plan as submitted, and
submit a report to Congress on the conclusions of the
assessment.
[[Page S5972]]
``(e) Grant Program in Support of Research and Development
Program.--
``(1) In general.--The Under Secretary of Commerce shall
manage a program of competitive grants to universities or
other research institutions, or groups of universities or
research institutions, for the purposes of conducting the
program established under subsection (d).
``(2) Applications and conditions.--In conducting the
program, the Under Secretary--
``(A) shall establish a notification and application
procedure;
``(B) may establish such conditions and require such
assurances as are appropriate to ensure the efficiency and
integrity of the grant program; and
``(C) may provide grants under the program on a matching or
nonmatching basis.
``(f) Advice and Guidance.--
``(1) In general.--The Committee shall accept comments and
input from State and local governments, Indian tribes,
industry representatives, and other stakeholders in carrying
out the duties of the Committee under subsection (c).
``(2) Advisory council.--The Committee may establish an
Advisory Council consisting of nongovernment experts and
stakeholders for the purpose of providing guidance to the
Committee on matters under this section.
``(g) Facilitation.--The Committee may develop joint
partnerships or enter into memoranda of agreement or
memoranda of understanding with institutions of higher
education, States, and other entities to facilitate the
research program required by subsection (d).
``(h) Annual Reports.--Not later than 1 year after the date
of enactment of the Oil Spill Technology and Research Act of
2010, and annually thereafter, the Chairperson of the
Committee shall submit to Congress a report that describes--
``(1) the activities carried out under this section during
the preceding fiscal year; and
``(2) the activities that are proposed to be carried out
under this section for the fiscal year during which the
report is submitted.
``(i) Authorization of Appropriations.--There are
authorized to be appropriated to the Secretary of Commerce to
carry out this section--
``(1) $200,000 for fiscal year 2010, to remain available
until expended, for use in entering into arrangements with
the National Academy of Sciences and for paying other
expenses incurred in developing the reports and research
program under this section; and
``(2) $2,000,000 for each of fiscal years 2010 through
2012, to remain available until expended.''.
(b) Termination of Authority of Interagency Committee.--
(1) In general.--The Interagency Coordinating Committee on
Oil Pollution Research established under section 7001 of the
Oil Pollution Act of 1990 (33 U.S.C. 2761) (as in effect on
the day before the date of enactment of this Act), and all
authority of that Committee, terminate on the date of
enactment of this Act.
(2) Funding.--Any funds made available for the Interagency
Coordinating Committee on Oil Pollution Research described in
paragraph (1) and remaining available as of the date of
enactment of this Act shall be transferred to and available
for use by the Federal Oil Spill Research Committee (as
established by the amendment made by subsection (a)), without
further appropriation or fiscal year limitation.
SEC. 3. RESPONSE PLAN UPDATE REQUIREMENT.
Section 311(j)(5) of the Federal Water Pollution Control
Act (33 U.S.C. 1321(j)(5)) is amended--
(1) in subparagraph (D)--
(A) by striking clause (v) and inserting the following:
``(v)(I) be updated at least every 5 years;
``(II) require the use of the best available technology and
methods to contain and remove, to the maximum extent
practicable, a worst-case discharge (including a discharge
resulting from fire or explosion), and to mitigate or prevent
a substantial threat of such a discharge; and
``(III) be resubmitted for approval upon each update (which
shall be considered to be a significant change to the
response plan) under this clause;'';
(B) in clause (vi), by striking the period at the end and
inserting ``; and''; and
(C) by adding at the end the following:
``(vii) include planned and demonstrated investments in
research relating to oil discharges, risk assessment, and
development of technologies for oil discharge response and
prevention.''.
(2) by adding at the end the following:
``(J) Technology standards.--The Coast Guard may establish
requirements and issue guidance for the use of best available
technology and methods under subparagraph (D)(v), which
technology and methods shall be based on performance metrics
and standards, to the maximum extent practicable.''.
SEC. 4. OIL DISCHARGE TECHNOLOGY INVESTMENT.
(a) In General.--The Secretary of the Department in which
the Coast Guard is operating (referred to in this section as
the ``Secretary'') shall establish a program for the formal
evaluation and validation of oil pollution containment and
removal methods and technologies.
(b) Approval.--
(1) In general.--The program shall establish a process for
new methods and technologies to be submitted, evaluated, and
gain validation for use in responses to discharges of oil and
inclusion in response plans.
(2) Consideration of capability.--Following each validation
of a method or technology described in paragraph (1), the
Secretary shall consider whether the method or technology
meets a performance capability warranting designation of a
new standard for best available technology or methods.
(3) Lack of validation.--The lack of validation of a method
or technology under this section shall not preclude--
(A) the use of the method or technology in response to a
discharge of oil; or
(B) the inclusion of the method or technology in a response
plan.
(c) Technology Clearinghouse.--Each technology and method
validated under this section shall be included in the
comprehensive list of discharge removal resources maintained
through the National Response Unit of the Coast Guard.
(d) Consultation.--In carrying out this section, the
Secretary shall consult with--
(1) the Secretary of the Interior;
(2) the Administrator of the National Oceanic and
Atmospheric Administration;
(3) the Administrator of the Environmental Protection
Agency; and
(4) the Secretary of Transportation.
____________________