S. 1751Senate112th Congress (2011-2013)In Committee

Coal Residuals Reuse and Management Act

Legislative Activity

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2 earlier actions

SenateIntro Referral Latest Action

Read twice and referred to the Committee on Environment and Public Works.

Environment and Public Works Committee

October 20, 2011

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SenateIntro Referral

Introduced in Senate

October 20, 2011

SenateIntro Referral

Sponsor introductory remarks on measure. (CR S6876-6877)

October 20, 2011

SenateIntro Referral

Read twice and referred to the Committee on Environment and Public Works.

Environment and Public Works Committee

October 20, 2011

Floor Debate

21 members

What members said about S. 1751 on the floor

+16

12 Republicans9 Democrats

Sen. Patrick J. LeahyD-VT · Oct 20, 2011

Mr. President, I rise in my capacity as chair of the Judiciary Committee to say I oppose amendment No. 860. It is a one- size-fits-all approach. It would have catastrophic consequences to the Justice Department and on the important work the Justice Department does in supporting local law enforcement, crime victims, and justice across the country.

I have worked with my good friend from Iowa, Senator Grassley, on many issues. We have been able to, in a bipartisan way, develop accountability measures to ensure that particular grants administered by the Department of Justice operate efficiently and effectively. That is particularly important at a time of budget austerity. We have done it in specific contexts when those measures make a lot of sense.

For example, in the course of our negotiations of a bipartisan version of the Trafficking Victims Protection Reauthorization Act, we worked out specific proposals. Nonetheless, six of the eight Republicans on the Judiciary Committee opposed this bill.

But one size does not fit all. Measures that make sense in one program cannot willy-nilly be applied to others without careful consideration of the consequences to the programs and, to the intended beneficiaries in local law enforcement, and crime victims.

A one-size-fits-all measure actually might harm rather than help important functions at the Department of Justice.

For example, this amendment would prevent grants to the Boys and Girls Clubs of America. I know some have criticized some aspects of the Boys and Girls Clubs, and I would be happy to work with any Senator to work out these issues. But the Boys and Girls Clubs of America do great work.

I remember one police chief in my State, when asked if I could help him get a couple more police officers to help out because of crime problems, said: No. Get me a Boys and Girls Club. Get me a place for young people to go.

I know in Vermont they do a great deal, as they do in most States. If there are reforms that should be made, let's do them, but not just cut out the funding in a one-size-fits-all way at a time when we are doing everything possible to give young people a different goal than going out into a life where they might do things none of us would agree with.

This amendment would greatly restrict the Department of Justice's ability to spend funds for salaries of its own people. Is that going to lead to huge cuts in prosecutors and agents? Are we going to be imposing a salary cap on top of the one the President has already imposed? Are we going to be losing some of our best people? Are we going to be unable to develop experienced law enforcement officers or prosecutors?

I know, in law enforcement and prosecution, we value experience. We do not want to go for the lowest common denominator. We want people who are experienced.

Again, a willy-nilly amendment does not help.

The amendment includes a grant-matching requirement. But in some programs, grant matching is not a good idea. Let me tell you about one, legislation that former Senator Ben Nighthorse Campbell and I put together. It has worked very well. It is the Leahy Bulletproof Vest Partnership Grant Program for local jurisdictions. We have, in some local jurisdictions, the ability to waive matching provisions.

We have seen a rise in the number of assaults and murders of police officers across this country. Many officers' lives have been saved because they have had bulletproof vests under the Leahy program. They would have died otherwise. But they are in small departments, in small departments in States that could not afford the $500 or $600 per bulletproof vest. Yet we expect these police officers to be out at 3 o'clock in the morning, usually with no backup. But if they are in a small, rural park in West Virginia or Vermont or all these other States, they do not have any backup. They are out there alone. We ought to give them the kind of protection they need.

I want our police officers in rural communities who do not have the budgeting of a big city department to have this kind of protection. So if we put a matching requirement by fiat--again, one-size-fits-all--we have a lot of rural police departments that are going to be badly hurt.

What about crime victims? Crime victims have already suffered great loss. Are we going to say: We can help you out, but pony up some money. Pony up a matching requirement, and then we will come in and help you. We are going to spend a fortune on the guy

we lock up who committed a crime. We will spend $30,000, $35,000 a year on that person. We are not going to ask for any matching money from the criminal. But we are going to say to the victim: We can help you, but, sorry--I know you lost all this money; I know you have been beaten, you have been bruised, you have been injured--you have to come up with some money before we can help you. The guy who did it, we will take care of him. We will pay for that. But we cannot help you.

No, no, no, no, no, no, no. I was a prosecutor for 8 years. I know how these victims suffer. They are usually the forgotten person in the criminal justice system. The headlines are: So and so was arrested. They are marched off. We are going to prosecute them. That is good. They should be. I prosecuted a lot of those people. But the victim is the one forgotten. Victims and others most in need of assistance are those least likely to be able to provide matching funds. Rural communities, small nonprofit providers, tribes, and States that are facing their own problems should not have another funding mandate put on them from Washington.

The new matching requirement and other requirements in this amendment would impose new burdens on all money going to State and local law enforcement through the COPS Program and many of the Byrne-JAG programs. It would prevent many police departments from hiring and keeping the officers they need. That is why the National District Attorneys Association and the National Association of Police Organizations have expressed their opposition to this amendment.

At one time, I had the honor of serving as vice president of the National District Attorneys Association. They care. They care about law enforcement. They care about prosecutors. They care about victims. We ought to listen to them.

It also would burden grants awarded through the Debbie Smith Act to reduce backlogs in testing rape kits. There are rapists who go free because we do not have the money to test the rape kits. Tell that to a victim. Tell that to the victim: We do not have the money to go get the person who did this. I am not going to vote in a way that I am going to be telling that victim: We cannot help you. We cannot test that rape kit.

The Debbie Smith grant program has received bipartisan support. It helps to ensure that rape victims will not have to continue to live in fear because somebody said: It is going to take a few months to test this because we do not have the money. By the way, lock your door. He might come back.

I am not going to vote for that.

The matching requirement would be devastating to the National Center for Missing and Exploited Children, which works hard every day to keep our children safe from those who would do them harm. It is hard to think of any work more important than protecting our children from the evils of abuse and exploitation, but this amendment would make that work much harder because the National Center receives Justice Department grants, but it does not have matching funds.

Time is running out. I could tell some stories. I could tell some stories about what happens to these children who are exploited and abused, and it would have everybody in tears. It did me when I saw them as a prosecutor, and it does every day when I read these reports as chairman of the Senate Judiciary Committee.

My God, if we can go and try to protect people around the world, let's protect our children here at home.

I agree with Senator Grassley that we need rigorous accountability measures. Of course, we should. We do this in our hearings every week in the Judiciary Committee. GAO does it. The inspector general does it. But do not do a one-size-fits-all that is going to say to our victims, that is going to say to rape victims, that is going to say to exploited children or that is going to say to our police officers, who are told to go out there without a bulletproof vest but to defend you and me in the middle of the night: Sorry, sorry, sorry. The wealthiest Nation on Earth cannot help you.

No; I oppose this amendment.

I yield the floor.

Amendment No. 879, as Modified

Mr. President, I yield back all time.

I ask for the yeas and nays.

Mr. President, I have worked with my good friend from Iowa on accountability measures and will continue to do so but not for this amendment.

This is a one-size-fits-all. There is a reason the National District Attorneys Association and a reason the National Association of Police Organizations oppose it. This would make it impossible for small, rural communities to get bulletproof vests under the Leahy-Campbell bulletproof vest program. This would make it impossible for some of the small departments to have the money to pay for rape kits, so they would have to tell the rape victim: Sorry, we can't go after the person who raped you, even though they might come back, because we don't have the money. We don't have the money to test this rape kit.

This is a one-size-fits-all that is going to hurt law enforcement. It is going to hurt victims. We will pay the price of the person we lock up, but we won't do anything to help the victim? I oppose it.

I stand with the prosecutors and the police who oppose it.

Sen. Chuck GrassleyR-IA · Oct 20, 2011

Mr. President, I ask the Chair to please inform me when I have spoken 10 minutes. For other people who want to speak, I don't think I will speak that long. My amendment No. 860 is a good government…

Mr. President, I ask the Chair to please inform me when I have spoken 10 minutes. For other people who want to speak, I don't think I will speak that long.

My amendment No. 860 is a good government amendment for which I hope we can get broad support. There are special interests in Washington making the rounds opposing this amendment. These groups have argued this amendment will unduly burden the Justice Department, take away grant money for worthy causes or erroneously ban grantees from future funds. These special interests are trying to protect their income streams of

Federal grants and don't want somebody looking over their shoulder to make sure they are spending taxpayer dollars wisely.

This amendment is a response to the lack of oversight, accountability, and responsibility for how American taxpayer dollars are spent by grant recipients. It is a response to my work in the Judiciary Committee, uncovering fraud, misappropriation of funds, offshore bank accounts by nonprofit organizations.

Can you understand that? Nonprofit organizations in America have offshore bank accounts, and many other shenanigans are occurring in grant programs administered by the Justice Department.

To fix this, my amendment includes an accountability and fraud prevention package for grants administered by the Department of Justice. I am glad to report the National Taxpayers Union, an independent nonpartisan advocate for taxpayers, supports the amendment.

For the last decade the inspector general has continuously labeled grant management at the Department of Justice a top management and performance challenge. That is from the inspector general. Despite the large sums of money the Department provides the grantees, the inspector general has repeatedly found inadequate controls on spending, inadequate oversight, and a general failure to ensure that taxpayer dollars are spent by grantees in accordance with the programs.

Each year, the inspector general audits only a small fraction of grants awarded by the Department. In fact, last year the inspector general audited 21 grant recipients. Keep the figure 21 in mind. The inspector general questioned more than one-quarter of all the taxpayer dollars these grantees received. These questioned costs occurred on a random selection of grantees and represent less than 1 percent of the total grant recipients. So we only audit--go over 1 percent, but of that 1 percent, 25 percent of them were found to have a waste of taxpayers' money or not proper accounting.

Perhaps the most concerning part of these audits is that they are randomly selected. If the inspector general's random selection of grantees universally uncovers unauthorized errors, then we can see why we have a much larger problem. If the findings of the audit from 2011 were extrapolated through all the grants, that would mean nearly $500 million in questionable costs annually.

My amendment requires the inspector general to audit 10 percent of the grants. It also requires the Attorney General to ban grantees for 2 years if they are found to have serious problems that have gone unremedied for longer than 6 months after the inspector general makes a negative finding. By requiring this remedy within 6 months, it ensures there is enough time to fix inadvertent mistakes but also ensures that truly bad actors are taken off the government rolls.

My amendment also requires the AG to reimburse the Federal Treasury from the Justice Department budget if funds are given to an excluded entity and then requires the Department to recoup lost grant money from those grantees. It also includes a limitation on conference spending at the Department. Just a few weeks ago, the inspector general issued an audit on conference spending at the Department.

We all heard about this audit, which revealed $16 muffins, the $32 Cracker Jack snacks, $5 cans of cola, the beef wellington appetizers, and other abuse of the money of the taxpayers by the Justice Department. What we have not heard is how, by this administration, spending at the Justice Department increased from $47 million in fiscal year 2008 to 1 year later $73 million and now 2 years later $91 million. Despite the biggest Federal deficit in history, the Justice Department, under this administration, has doubled spending on conferences in just 2 years. This is unacceptable, and it is why my amendment requires the Deputy Attorney General to sign off on all conference spending.

My amendment would prohibit the Attorney General from providing any grant to a nonprofit charity that holds money in offshore bank accounts for the purpose of evading Federal taxes. If it is nonprofit, one would think they would be using their money for nonprofit purposes.

This provision was the result of an investigation I conducted into the Boys and Girls Club of America, the national umbrella organization for thousands of local clubs. In response to my inquiry, the Boys and Girls Club of America admitted that, despite closing hundreds of clubs nationwide, it held nearly $222 million in investment, of which $54 million was in offshore investments and another $54 million in partnerships. When asked why this money was held offshore, I was told it was held to `` . . . avoid issues with unrelated Business Income Tax generated by hedge funds that use leverage.''

I support the mission of the Boys and Girls Clubs, truly I do. It is true nothing they did was illegal. However, given our current fiscal crisis, I cannot support Federal tax dollars being awarded as grants to those who hold millions of dollars offshore--I should say tens of millions of dollars offshore.

Finally, I will note that my amendment includes a 25-percent matching requirement for grantees, as I heard the special interest lobbyists have been calling and sending panicked messages to many Members in the Senate opposing the matching requirement, arguing it would shut off Federal money to many grantees.

This provision mirrors one recently included at a Judiciary Committee markup supported by all Judiciary Committee Democrats and some Republicans. Matching requirements are often required by grant programs that virtually all members have supported. The Government Accountability Office even reported in a 2006 report on grant management that to strengthen grant management, Congress should ``ensure mechanisms are of sufficient value'' when implementing grants. This is GAO speak for including a matching requirement so grantees are financially involved, not simply spending Federal taxpayer dollars.

That said, I wanted to modify my amendment and strike this provision. However, I understand people on the other side of the aisle objected to that request so it would be easier to defeat my amendment. Remember, this is an amendment Republicans and Democrats accepted in the Judiciary Committee. This is big money at stake with Federal grants. Talk about special interests, the special interests have spoken. Those who oppose my amendment oppose holding grantees accountable for how they spend taxpayer dollars. Those who oppose my amendment are supporting giving nonprofit charities with money in offshore bank accounts taxpayer dollars. It will be interesting to see who opposes this provision, especially given the fact that everyone should oppose giving taxpayer dollars to those who hold money offshore.

My amendment is a commonsense way to ensure that taxpayer dollars are protected. It is something we should have done long ago. I encourage all my colleagues to join me and send a signal that waste, fraud, and abuse of taxpayer dollars has no place in a Federal grant programs at the Department of Justice. That would include all of them but particularly to organizations that hold money offshore to avoid taxes.

I yield the floor.

Mr. President, this is a good-government amendment, and it goes after the Justice Department grant management program because the inspector general has had grant management at the top of his 10 major management challenges. The inspector general says that management of grants at the Justice Department is abominable, so this amendment is trying to take care of what the inspector general has said is needed to be done for a long period of time. Grant recipients would be held to basic principles of accountability. There are only a handful of grants audited each year, but out of that handful 25 percent talk about mismanagement, fraud, and things of that nature.

A vote against my amendment would be a vote to allow fraud, waste, and abuse of taxpayer-funded grant programs. A vote against my amendment would allow nonprofit charities to continue to hold money in offshore bank accounts for tax purposes and still receive Federal grants. I have a letter in my office that justifies $54 million in offshore accounts.

I hope my colleagues will vote for this good-government amendment.

It is supported by the National Taxpayers Union.

I ask for the yeas and nays.

Sen. John HoevenR-ND · Oct 20, 2011

Mr. President, I rise to speak on the issue of job creation as well, specifically in regard to legislation I will be introducing that seeks to not only create jobs but also to truly reduce the cost…

In North Dakota, we have a powerplant north of our State capitol, the city of Bismarck. It is about 1,100 megawatts. It consists of two separate plants, each of them 550 megawatts, so the complex provides 1,100 megawatts of electricity, power that fuels our State, as well as sending power to Minnesota and other places as well. This plant uses the latest in emission control technology. It is state of the art.

We also have an ethanol plant attached to the powerplant, so the waste steam that comes off the powerplant is used to power the ethanol plant to make low-cost transportation fuel as well.

In addition to those things, another innovation at this plant is that after they produce the electricity, they take hundreds of thousands of tons of coal ash and, rather than landfilling it, they actually reuse it, and they use it to make concrete--they call it FlexCrete--for highways, they use it in building materials, and they even use it in products such as the shingles we use on our roofs.

Formerly, this plant paid about $4 million a year to landfill that coal ash. Now they sell it for all these products and generate around $12 million a year in revenue. If you take the $4 million they used to expend to landfill the material, figure in the $12 million they now make selling the product, that is a $16 million revenue benefit to the plant. That means a $16 million reduction in the cost of electricity to their customers throughout North Dakota and Minnesota.

At the same time, because they have partnered with a company out of Utah called Headwaters, right there at the complex they also have a facility that manufactures these building products, FlexCrete, and creates good-paying jobs as well.

Today I rise to introduce commonsense, bipartisan legislation--a jobs bill, if you will--the Coal Residuals Reuse and Management Act. In fact, this legislation has already passed the House of Representatives with a large bipartisan majority.

In a true example of American ingenuity and innovation, entrepreneurs around the country are recycling coal ash. Millions of Americans now work in buildings that are either partially constructed from coal ash- strengthened building materials or they drive home from work on roads and over bridges that are made of coal ash concrete or, as I said, they live under roofs that are shingled, and those shingles are made out of this coal residuals material. In fact, in my home State of North Dakota, we have both our Heritage Center, which is under construction now, and also the National Energy Center of Excellence that were constructed with these materials.

First, this National Energy Center of Excellence, this is the Bismarck State College. They specialize in energy programs. This facility overlooks the Missouri River and it is about a $20-plus million facility. It is absolutely beautiful, and it is made with the coal residual building materials.

On this other slide, right now this facility is under construction. This will be a more than $50 million facility, which is, in essence, a museum and a heritage center for the State of North Dakota. The building materials in this state-of-art facility will have both static and interactive displays and is being built with what is called coal ash--but coal residual materials. These are materials coming out of powerplants that were formerly simply landfill, and now we are using them for all these purposes. The important point is, we need to be able to continue to do that. That is exactly why I am introducing this legislation.

It turns out that using this natural byproduct of coal combustion not only makes our buildings and infrastructure stronger, it makes homes, businesses, and highways more affordable to build. It also creates hundreds of thousands of jobs in the process, while using this cost- effective material.

Meanwhile, by using coal ash in such an innovative manner, it is estimated the overall energy consumption in this country can be reduced by 162 trillion Btu's, British thermal units, and that water usage is reduced annually by 32 billion gallons a year. That is the equivalent of the amount of energy used by 1.7 million homes a year and the amount of water--actually one-third of the amount of water used in the entire State of California each year. So we can see from a conservation standpoint what an incredible impact using these materials has.

Unfortunately, the EPA is now considering whether to overturn 30 years of precedent and regulate coal ash as a hazardous material, despite findings from the Department of Energy, the Federal Highway Administration, and State regulatory agencies throughout the country, as well as EPA itself. EPA's own studies show the toxicity level in coal ash is well below the criteria that requires any type of hazardous waste designation.

In fact, the EPA's May 2000 regulatory determination--in that determination they concluded that coal ash does not warrant regulation as hazardous waste and that doing so would be environmentally counterproductive. However, new regulations first proposed in June of 2010 would create a stigma for coal ash recycling and expose it to frivolous lawsuits that could undermine the industry, cost thousands of jobs, and take billions of dollars out of our economy at a time when working families can least afford it. But the damage to American's pocketbooks would not just stop with the undermining of this recycling industry.

It is estimated that meeting the regulatory disposal requirements under the EPA's subtitle C proposal would cost between $250 and $450 per ton, as opposed to about $100 per ton under the current system. That could mean up to another $50 billion in costs, a burden on our electricity generators that use coal and, most important, customers-- American families, businesses, and farmers--again, Americans throughout this great country.

It is also estimated this regulation by EPA, this proposal, could mean the loss of more than 300,000 American jobs. That is why I have at the desk the Coal Residuals Reuse and Management Act, which I am introducing today, along with Senator Kent Conrad, Senator Michael Enzi, Senator Mary Landrieu, Senator Rob Portman, Senator Ben Nelson, Senator Joe Manchin, and also Senator John Boozman; four Republicans and four Democrats. This is truly a bipartisan piece of legislation.

As I said, it is a companion to H. Res. 2273 that passed the U.S. House of Representatives last Friday with strong--and I emphasize strong--bipartisan support. It takes a commonsense approach to ensuring we can continue

this vital industry and, in fact, build it, save millions of dollars for American consumers and create hundreds of thousands of jobs.

This bill not only preserves coal ash recycling by preventing the byproducts from being treated as hazardous, it establishes Federal standards for coal ash disposal. Under this legislation, States can set up their own permitting programs for the management and disposal of coal ash. These programs would be required to be based on existing EPA regulations to protect human health and the environment. If a State does not implement an acceptable permit program, then the EPA regulates the program for that State.

Importantly, States will know where they stand under this bill since the benchmark for what constitutes a successful State program is set in statute. EPA can say: Yes, the State does meet these standards or, no, it doesn't. But EPA cannot move the goalposts. This is a State's first approach that provides regulatory certainty. What is certain is, under this bill, coal ash disposal sites will be required to meet established standards. These include groundwater detection and monitoring, liners, corrective action when environmental damage occurs, structural stability criteria and financial assurance and the recordkeeping needed to protect the public.

The Coal Residual Reuse and Management Act is legislation needed to protect jobs and help reduce the cost of home and road construction and electric bills.

I wish to thank both the Republicans and the Democrats who have taken a leadership role and are joining me in cosponsoring this legislation. I particularly wish to thank my fellow Senator from North Dakota, Mr. Kent Conrad. I urge our colleagues to join us and support this important measure.

Sen. John HoevenR-ND · Oct 20, 2011

We also have an ethanol plant attached to the powerplant, so the waste steam that comes off the powerplant is used to power the ethanol plant to make low-cost transportation fuel as well.

this vital industry and, in fact, build it, save millions of dollars for American consumers and create hundreds of thousands of jobs.

The Coal Residual Reuse and Management Act is legislation needed to protect jobs and help reduce the cost of home and road construction and electric bills.

Sen. Carl LevinD-MI · Oct 20, 2011

Mr. President, I am going to speak now against the pending amendment of Senator Ayotte, which would prohibit the prosecution of terrorists in Federal courts. We need all available tools against…

Mr. President, I am going to speak now against the pending amendment of Senator Ayotte, which would prohibit the prosecution of terrorists in Federal courts.

We need all available tools against terrorists, including the possibility of prosecution in Federal courts or before military commissions. While there is no doubt we have made use of military commissions in the course of previous wars, we have never enacted legislation closing the Federal courts to the prosecution of our enemies. We have always left it up to the executive branch to determine which tool best suits an individual case.

Indeed, both the Bush administration and the Obama administration have repeatedly used the Federal courts to bring terrorists to justice. For example, the Bush administration successfully used the Federal courts to prosecute Richard Reid, the so-called shoe bomber, in October of 2002. The Bush administration used the Federal courts to successfully prosecute Ahmed Omar Abu, who was convicted and sentenced to 30 years in 2005. The Bush administration used the Federal courts to prosecute and sentence Zacarias Moussaoui, the so-called twentieth hijacker, convicted in 2006, and sentenced to life in prison for his role in the 9/11 attacks.

The Obama administration successfully used the Federal courts when they prosecuted Najibulla Zazi in 2009 for his role in the New York subway bombing plot; when they prosecuted Faisal Shahzad in 2010 in connection with the Times Square bombing; and when they prosecuted Umar Farouk Abdulmutallab, the so-called underwear bomber, in 2011 in connection with the attempted Christmas Day bombing in Detroit.

If the Ayotte amendment had been law, these successful court prosecutions would have been thrown into doubt. In fact, prosecution might not have been possible in any forum, because if a court determined that a military commission lacked jurisdiction and if the Ayotte amendment precluded jurisdiction of a Federal court, there couldn't be prosecution in any forum whatsoever.

That could have actually been the outcome in the case of Ahmed Warsame, an accused member of the terrorist group al-Shabaab. He was indicted in Federal court earlier this

year on charges of providing material support to al-Shabaab and al- Qaida in the Arabian Peninsula. In the Warsame case, our national security and legal teams determined that the Federal courts provided the best forum in which to prosecute Warsame for his alleged crimes.

This decision was reached for two reasons:

One, Warsame is alleged to have violated a number of Federal statutes, including sections of the criminal code prohibiting trafficking in explosives, use of dangerous weapons, acts of international terrorism, providing material support to foreign terrorist organizations, and receiving military type training from foreign terrorist organizations. Only the Federal courts have jurisdiction to try violations of those sections. Those offenses are not listed as crimes under the Military Commissions Act.

There is a second reason why it was decided that Warsame was best prosecuted in a Federal court, which could not happen under the amendment of Senator Ayotte. Warsame appears to have engaged in acts of terrorism and material support to terrorism, both of which are crimes under the Military Commissions Act, but--and this is the problem--only if they are committed ``in the context of and associated with hostilities'' against the United States.

The administration concluded it would have been difficult to prove beyond a reasonable doubt before a military commission that Warsame met those jurisdictional thresholds. As a result, if the Ayotte amendment were law, it might be impossible for the United States to prosecute Warsame in any forum.

Our Federal prosecutors have a proven track record of prosecuting terrorists in Federal courts. Two years ago, the Justice Department informed us that there were 208 inmates in Federal prisons who had been sentenced for crimes relating to international terrorism, and an additional 139 inmates who had been sentenced for crimes related to domestic terrorism. Those were crimes which were prosecuted in Federal courts.

By contrast, only four enemy combatants have been convicted by military commissions since 9/11, two of them, by the way, as a result of plea agreements, sending them to Australia and to Canada.

Critics of the decision to try Warsame in Federal court apparently would prefer that he be tried before a military commission even though he might be less likely to be convicted there due to the jurisdictional issues.

The most appropriate forum for trial should be determined, as it was in Warsame, on the basis of the nature of the offense, the nature of the evidence, and the likelihood of successful prosecution. The executive branch officials who make these determinations are more likely to reach a sound conclusion after weighing those factors than would be the result of a one-size-fits-all legislative restriction that we would impose under the Ayotte amendment.

Yesterday afternoon we received a letter from the Secretary of Defense and the Attorney General expressing their ``strong opposition'' to the Ayotte amendment. The letter states as follows:

Whether a given case should be tried in an Article III

court or before a military commission is a decision that

should be based on the facts and circumstances of the case

and the overall national security interests of the United

States. It is a decision best left in the hands of

experienced national security professionals.

The letter continues:

If we are to safeguard the American people, we must be in a

position to employ every lawful instrument of national

power--including both courts and military commissions--to

ensure that terrorists are brought to justice and can no

longer threaten American lives. By depriving us of one of our

most potent weapons in the fight against terrorism, the

amendment would make it more likely that terrorists would

escape justice and innocent lives would be put at risk.

I ask unanimous consent that the text of the letter be printed in the Congressional Record immediately following my remarks.

This issue, as the Presiding Officer may recall, came up in the Armed Services Committee during our markup of the Defense Authorization Act. Our bill expressly allows the transfer of detainees for trial by a court or competent tribunal having lawful jurisdiction. The amendment of Senator Ayotte to delete that authority was defeated in the Armed Services Committee by a vote of 19 to 7.

The bottom line is that Congress has never before attempted to prevent the prosecution of terrorists in Federal court. We should not do so now. We should continue to use military commissions in cases where they are the best place for prosecution and for trial. We should not foreclose prosecution and trial in Federal courts.

Exhibit 1

Hon. Harry Reid,

Majority Leader, U.S. Senate,

Washington, DC.

Hon. Mitch McConnell,

Minority Leader, U.S. Senate,

Washington, DC.

Dear Leader Reid and Leader McConnell: We write to express

our strong opposition to the Ayotte amendment to H.R. 2112,

which would severely curtail the ability of the Executive

branch to prosecute alleged terrorists in Federal court.

The amendment represents an extreme and unprecedented

encroachment on the authority of the Executive Branch to

determine when and where to prosecute terrorist suspects.

Whether a given case should be tried in an Article III court

or before a military commission is a decision that should be

based on the facts and circumstances of the case and the

overall national security interests of the United States. It

is a decision best left in the hands of experienced national

security professionals.

If we are to safeguard the American people, we must be in a

position to employ every lawful instrument of national

power--including both courts and military commissions--to

ensure that terrorists are brought to justice and can no

longer threaten American lives. By depriving us of one of our

most potent weapons in the fight against terrorism, the

amendment would make it more likely that terrorists will

escape justice and innocent lives will be put at risk.

Leon E. Panetta,

Secretary of Defense.

Eric H. Holder, Jr.,

Attorney General.

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Introduced in SenateIssued October 20, 2011

112th CONGRESS

1st Session

S. 1751

IN THE SENATE OF THE UNITED STATES

October 20, 2011

Mr. Hoeven (for himself, Mr. Conrad, Mr. Enzi, Ms. Landrieu, Mr. Boozman, Mr. Nelson of Nebraska, Mr. Portman, Mr. Manchin, Mr. Thune, and Mr. Rockefeller) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works

A BILL

To amend subtitle D of the Solid Waste Disposal Act to facilitate recovery and beneficial use, and provide for the proper management and disposal, of materials generated by the combustion of coal and other fossil fuels.

Short title

This Act may be cited as the Coal Residuals Reuse and Management Act.

Amendment to Subtitle D of the Solid Waste Disposal Act

(a)

In general

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

4011.

Management and disposal of coal combustion residuals

(a)

State permit programs for coal combustion residuals

Each State may adopt and implement a coal combustion residuals permit program.

(b)

State actions

(1)

Notification

Not later than 6 months after the date of enactment of this section (except as provided by the deadline identified under subsection (d)(2)(B)), the Governor of each State shall notify the Administrator, in writing, whether such State will adopt and implement a coal combustion residuals permit program.

(2)

Certification

(A)

In general

Not later than 36 months after the date of enactment of this section (except as provided in subsections (f)(1)(A) and (f)(1)(C)), in the case of a State that has notified the Administrator that it will implement a coal combustion residuals permit program, the head of the lead State agency responsible for implementing the coal combustion residuals permit program shall submit to the Administrator a certification that such coal combustion residuals permit program meets the specifications described in subsection (c)(1).

(B)

Contents

A certification submitted under this paragraph shall include—

(i)

a letter identifying the lead State agency responsible for implementing the coal combustion residuals permit program, signed by the head of such agency;

(ii)

identification of any other State agencies involved with the implementation of the coal combustion residuals permit program;

(iii)

a narrative description that provides an explanation of how the State will ensure that the coal combustion residuals permit program meets the requirements of this section, including a description of the State's—

(I)

process to inspect or otherwise determine compliance with such permit program;

(II)

process to enforce the requirements of such permit program; and

(III)

public participation process for the promulgation, amendment, or repeal of regulations for, and the issuance of permits under, such permit program;

(iv)

a legal certification that the State has, at the time of certification, fully effective statutes and regulations necessary to implement a coal combustion residuals permit program that meets the specifications described in subsection (c)(1); and

(v)

copies of State statutes and regulations described in clause (iv).

(3)

Maintenance of 4005(c) or 3006 program

In order to adopt or implement a coal combustion residuals permit program under this section (including pursuant to subsection (f)), the State agency responsible for implementing a coal combustion residuals permit program in a State shall maintain an approved program under section 4005(c) or an authorized program under section 3006.

(c)

Permit program specifications

(1)

Minimum requirements

The specifications described in this subsection for a coal combustion residuals permit program are as follows:

(A)

The revised criteria described in paragraph (2) shall apply to a coal combustion residuals permit program, except as provided in paragraph (3).

(B)

Each structure shall be, in accordance with generally accepted engineering standards for the structural integrity of such structures, designed, constructed, and maintained to provide for containment of the maximum volumes of coal combustion residuals appropriate for the structure. If a structure is determined by the head of the agency responsible for implementing the coal combustion residuals permit program to be deficient, the head of such agency has authority to require action to correct the deficiency according to a schedule determined by such agency. If the identified deficiency is not corrected according to such schedule, the head of such agency has authority to require that the structure close in accordance with subsection (h).

(C)

The coal combustion residuals permit program shall apply the revised criteria promulgated pursuant to section 4010(c) for location, design, groundwater monitoring, corrective action, financial assurance, closure, and post-closure described in paragraph (2) and the specifications described in this paragraph to surface impoundments.

(D)

If a structure that is classified as posing a high hazard potential pursuant to the guidelines published by the Federal Emergency Management Agency entitled Federal Guidelines for Dam Safety: Hazard Potential Classification System for Dams (FEMA Publication Number 333) is determined by the head of the agency responsible for implementing the coal combustion residuals permit program to be deficient with respect to the structural integrity requirement in subparagraph (B), the head of such agency has authority to require action to correct the deficiency according to a schedule determined by such agency. If the identified deficiency is not corrected according to such schedule, the head of such agency has authority to require that the structure close in accordance with subsection (h).

(E)

New structures that first receive coal combustion residuals after the date of enactment of this section shall be constructed with a base located a minimum of two feet above the upper limit of the natural water table.

(F)

In the case of a coal combustion residuals permit program implemented by a State, the State has the authority to inspect structures and implement and enforce such permit program.

(G)

In the case of a coal combustion residuals permit program implemented by a State, the State has the authority to address wind dispersal of dust from coal combustion residuals by requiring dust control measures, as determined appropriate by the head of the lead State agency responsible for implementing the coal combustion residuals permit program.

(2)

Revised criteria

The revised criteria described in this paragraph are—

(A)

the revised criteria for design, groundwater monitoring, corrective action, closure, and post-closure, for structures, including—

(i)

for new structures, and lateral expansions of existing structures, that first receive coal combustion residuals after the date of enactment of this section, the revised criteria regarding design requirements described in section 258.40 of title 40, Code of Federal Regulations; and

(ii)

for all structures that receive coal combustion residuals after the date of enactment of this section, the revised criteria regarding groundwater monitoring and corrective action requirements described in subpart E of part 258 of title 40, Code of Federal Regulations, except that, for the purposes of this paragraph, such revised criteria shall also include—

(I)

for the purposes of detection monitoring, the constituents boron, chloride, conductivity, fluoride, mercury, pH, sulfate, sulfide, and total dissolved solids; and

(II)

for the purposes of assessment monitoring, the constituents aluminum, boron, chloride, fluoride, iron, manganese, molybdenum, pH, sulfate, and total dissolved solids;

(B)

the revised criteria for location restrictions described in—

(i)

for new structures, and lateral expansions of existing structures, that first receive coal combustion residuals after the date of enactment of this section, sections 258.11 through 258.15 of title 40, Code of Federal Regulations; and

(ii)

for existing structures that receive coal combustion residuals after the date of enactment of this section, sections 258.11 and 258.15 of title 40, Code of Federal Regulations;

(C)

for all structures that receive coal combustion residuals after the date of enactment of this section, the revised criteria for air quality described in section 258.24 of title 40, Code of Federal Regulations;

(D)

for all structures that receive coal combustion residuals after the date of enactment of this section, the revised criteria for financial assurance described in subpart G of part 258 of title 40, Code of Federal Regulations;

(E)

for all structures that receive coal combustion residuals after the date of enactment of this section, the revised criteria for surface water described in section 258.27 of title 40, Code of Federal Regulations;

(F)

for all structures that receive coal combustion residuals after the date of enactment of this section, the revised criteria for recordkeeping described in section 258.29 of title 40, Code of Federal Regulations;

(G)

for landfills and other land-based units, other than surface impoundments, that receive coal combustion residuals after the date of enactment of this section, the revised criteria for run-on and run-off control systems described in section 258.26 of title 40, Code of Federal Regulations; and

(H)

for surface impoundments that receive coal combustion residuals after the date of enactment of this section, the revised criteria for run-off control systems described in section 258.26(a)(2) of title 40, Code of Federal Regulations.

(3)

Applicability of certain requirements

A State may determine that one or more of the requirements of the revised criteria described in paragraph (2) is not needed for the management of coal combustion residuals in that State, and may decline to apply such requirement as part of its coal combustion residuals permit program. If a State declines to apply a requirement under this paragraph, the State shall include in the certification under subsection (b)(2) a description of such requirement and the reasons such requirement is not needed in the State. If the Administrator determines that a State determination under this paragraph does not accurately reflect the needs for the management of coal combustion residuals in the State, the Administrator may treat such State determination as a deficiency under subsection (d).

(d)

Written notice and opportunity To remedy

(1)

In general

The Administrator shall provide to a State written notice and an opportunity to remedy deficiencies in accordance with paragraph (2) if at any time the State—

(A)

does not satisfy the notification requirement under subsection (b)(1);

(B)

has not submitted a certification under subsection (b)(2);

(C)

does not satisfy the maintenance requirement under subsection (b)(3); or

(D)

is not implementing a coal combustion residuals permit program that meets the specifications described in subsection (c)(1).

(2)

Contents of notice; deadline for response

A notice provided under this subsection shall—

(A)

include findings of the Administrator detailing any applicable deficiencies in—

(i)

compliance by the State with the notification requirement under subsection (b)(1);

(ii)

compliance by the State with the certification requirement under subsection (b)(2);

(iii)

compliance by the State with the maintenance requirement under subsection (b)(3); and

(iv)

the State coal combustion residuals permit program in meeting the specifications described in subsection (c)(1); and

(B)

identify, in collaboration with the State, a reasonable deadline, which shall be not sooner than 6 months after the State receives the notice, by which the State shall remedy the deficiencies detailed under subparagraph (A).

(e)

Implementation by Administrator

(1)

In general

The Administrator shall implement a coal combustion residuals permit program for a State only in the following circumstances:

(A)

If the Governor of such State notifies the Administrator under subsection (b)(1) that such State will not adopt and implement such a permit program.

(B)

If such State has received a notice under subsection (d) and, after any review brought by the State under section 7006, fails, by the deadline identified in such notice under subsection (d)(2)(B), to remedy the deficiencies detailed in such notice under subsection (d)(2)(A).

(C)

If such State informs the Administrator, in writing, that such State will no longer implement such a permit program.

(2)

Requirements

If the Administrator implements a coal combustion residuals permit program for a State under paragraph (1), such permit program shall consist of the specifications described in subsection (c)(1).

(3)

Enforcement

If the Administrator implements a coal combustion residuals permit program for a State under paragraph (1), the authorities referred to in section 4005(c)(2)(A) shall apply with respect to coal combustion residuals and structures and the Administrator may use such authorities to inspect, gather information, and enforce the requirements of this section in the State.

(f)

State control after implementation by Administrator

(1)

State control

(A)

New adoption and implementation by State

For a State for which the Administrator is implementing a coal combustion residuals permit program under subsection (e)(1)(A), the State may adopt and implement such a permit program by—

(i)

notifying the Administrator that the State will adopt and implement such a permit program;

(ii)

not later than 6 months after the date of such notification, submitting to the Administrator a certification under subsection (b)(2); and

(iii)

receiving from the Administrator—

(I)

a determination that the State coal combustion residuals permit program meets the specifications described in subsection (c)(1); and

(II)

a timeline for transition of control of the coal combustion residuals permit program.

(B)

Remedying deficient permit program

For a State for which the Administrator is implementing a coal combustion residuals permit program under subsection (e)(1)(B), the State may adopt and implement such a permit program by—

(i)

remedying the deficiencies detailed in the notice provided under subsection (d)(2)(A); and

(ii)

receiving from the Administrator—

(I)

a determination that the deficiencies detailed in such notice have been remedied; and

(II)

a timeline for transition of control of the coal combustion residuals permit program.

(C)

Resumption of implementation by State

For a State for which the Administrator is implementing a coal combustion residuals permit program under subsection (e)(1)(C), the State may adopt and implement such a permit program by—

(i)

notifying the Administrator that the State will adopt and implement such a permit program;

(ii)

not later than 6 months after the date of such notification, submitting to the Administrator a certification under subsection (b)(2); and

(iii)

receiving from the Administrator—

(I)

a determination that the State coal combustion residuals permit program meets the specifications described in subsection (c)(1); and

(II)

a timeline for transition of control of the coal combustion residuals permit program.

(2)

Review of determination

(A)

Determination required

The Administrator shall make a determination under paragraph (1) not later than 90 days after the date on which the State submits a certification under paragraph (1)(A)(ii) or (1)(C)(ii), or notifies the Administrator that the deficiencies have been remedied pursuant to paragraph (1)(B)(i), as applicable.

(B)

Review

A State may obtain a review of a determination by the Administrator under paragraph (1) as if such determination was a final regulation for purposes of section 7006.

(3)

Implementation during transition

(A)

Effect on actions and orders

Actions taken or orders issued pursuant to a coal combustion residuals permit program shall remain in effect if—

(i)

a State takes control of its coal combustion residuals permit program from the Administrator under paragraph (1); or

(ii)

the Administrator takes control of a coal combustion residuals permit program from a State under subsection (e).

(B)

Change in requirements

Subparagraph (A) shall apply to such actions and orders until such time as the Administrator or the head of the lead State agency responsible for implementing the coal combustion residuals permit program, as applicable—

(i)

implements changes to the requirements of the coal combustion residuals permit program with respect to the basis for the action or order; or

(ii)

certifies the completion of a corrective action that is the subject of the action or order.

(4)

Single permit program

If a State adopts and implements a coal combustion residuals permit program under this subsection, the Administrator shall cease to implement the permit program implemented under subsection (e) for such State.

(g)

Effect on determination under 4005(c) or 3006

The Administrator shall not consider the implementation of a coal combustion residuals permit program by the Administrator under subsection (e) in making a determination of approval for a permit program or other system of prior approval and conditions under section 4005(c) or of authorization for a program under section 3006.

(h)

Closure

If it is determined, pursuant to a coal combustion residuals permit program, that a structure should close, the time period and method for the closure of such structure shall be set forth in a closure plan that establishes a deadline for completion and that takes into account the nature and the site-specific characteristics of the structure to be closed. In the case of a surface impoundment, the closure plan shall require, at a minimum, the removal of liquid and the stabilization of remaining waste, as necessary to support the final cover.

(i)

Authority

(1)

State authority

Nothing in this section shall preclude or deny any right of any State to adopt or enforce any regulation or requirement respecting coal combustion residuals that is more stringent or broader in scope than a regulation or requirement under this section.

(2)

Authority of the administrator

(A)

In general

Except as provided in subsection (e) of this section and section 6005 of this title, the Administrator shall, with respect to the regulation of coal combustion residuals, defer to the States pursuant to this section.

(B)

Imminent hazard

Nothing in this section shall be construed to affect the authority of the Administrator under section 7003 with respect to coal combustion residuals.

(C)

Technical and enforcement assistance only upon request

Upon request from the head of a lead State agency that is implementing a coal combustion residuals permit program, the Administrator may provide to such State agency only the technical or enforcement assistance requested.

(3)

Citizen suits

Nothing in this section shall be construed to affect the authority of a person to commence a civil action in accordance with section 7002.

(j)

Mine reclamation activities

A coal combustion residuals permit program implemented under subsection (e) by the Administrator shall not apply to the utilization, placement, and storage of coal combustion residuals at surface mining and reclamation operations.

(k)

Definitions

In this section:

(1)

Coal combustion residuals

The term coal combustion residuals means—

(A)

the solid wastes listed in section 3001(b)(3)(A)(i), including recoverable materials from such wastes;

(B)

coal combustion wastes that are co-managed with wastes produced in conjunction with the combustion of coal, provided that such wastes are not segregated and disposed of separately from the coal combustion wastes and comprise a relatively small proportion of the total wastes being disposed in the structure;

(C)

fluidized bed combustion wastes;

(D)

wastes from the co-burning of coal with non-hazardous secondary materials provided that coal makes up at least 50 percent of the total fuel burned; and

(E)

wastes from the co-burning of coal with materials described in subparagraph (A) that are recovered from monofills.

(2)

Coal combustion residuals permit program

The term coal combustion residuals permit program means a permit program or other system of prior approval and conditions that is adopted by or for a State for the management and disposal of coal combustion residuals to the extent such activities occur in structures in such State.

(3)

Structure

The term structure means a landfill, surface impoundment, or other land-based unit which may receive coal combustion residuals.

(4)

Revised criteria

The term revised criteria means the criteria promulgated for municipal solid waste landfill units under section 4004(a) and under section 1008(a)(3), as revised under section 4010(c) in accordance with the requirement of such section that the criteria protect human health and the environment.

(b)

Conforming amendment

The table of contents contained in section 1001 of the Solid Waste Disposal Act is amended by inserting after the item relating to section 4010 the following:

Sec. 4011. Management and disposal of coal combustion residuals.

2000 regulatory determination

Nothing in this Act, or the amendments made by this Act, shall be construed to alter in any manner the Environmental Protection Agency’s regulatory determination entitled Notice of Regulatory Determination on Wastes from the Combustion of Fossil Fuels, published at 65 Fed. Reg. 32214 (May 22, 2000), that the fossil fuel combustion wastes addressed in that determination do not warrant regulation under subtitle C of the Solid Waste Disposal Act (42 U.S.C. 6921 et seq.).