Petroleum Coke Transparency and Public Health Study Act

Mr. President, today I join with my senior colleague from Iowa, Senator Grassley, and with the distinguished chair of the Judiciary

Committee, Senator Leahy, in reintroducing the Protecting Older Workers Against Discrimination Act.

The need for this legislation was vividly demonstrated by the experience of an Iowan--Jack Gross. Mr. Gross gave the prime of his life, a quarter century of loyal service, to one company. Despite Mr. Gross's stellar work record, FBL Financial demoted him and other employees over the age of 50 and gave his job to a younger employee.

Expressly to prevent this kind of discrimination, in 1967 Congress passed the Age Discrimination in Employment Act, ADEA. Modeled from and using the same language as Title VII of the Civil Rights Act of 1964-- which prohibits employment discrimination on the basis of race, sex, national origin and religion--the ADEA makes it unlawful to discriminate on the basis of age.

When Mr. Gross sought to enforce his rights under this law, a jury of Iowans heard the facts and found that his employer discriminated against him because of his age. That jury awarded him almost $47,000 in lost compensation.

The case was ultimately appealed to the Supreme Court. In June 2009, in Gross v. FBL Financial, Inc., the Court ruled against Mr. Gross, and in doing so made it harder for those with legitimate age discrimination claims to prevail under the ADEA. In fact, on remand, despite the fact Mr. Gross had established that age discrimination was a factor in his demotion, he lost his retrial.

For decades, the law was clear. In 1989, in Price Waterhouse v. Hopkins, the Court ruled that if a plaintiff seeking relief under Title VII of the Civil Rights Act demonstrated that discrimination was a ``motivating'' or ``substantial'' factor behind the employer's action, the burden shifted to the employer to show it would have taken the same action regardless of the plaintiff's membership in a protected class. As part of the Civil Rights Act of 1991, Congress codified the ``motivating factor'' standard with respect to Title VII discrimination claims.

Since the ADEA uses the same language as Title VII, was modeled from it, and had been interpreted consistent with the Civil Rights Act, courts rightly and consistently held that, like a plaintiff claiming discrimination on the basis of race, sex, religion and national origin, a victim bringing suit under the ADEA need only show that membership in a protected class was a ``motivating factor'' in an employer's action. If an employee showed that age was one factor in an employment decision, the burden was on the employer to show it had acted for a legitimate reason other than age.

In Gross, the Court, addressing a question on which it did not grant certiorari, tore up this decades' old standard. In its place, the Court imposed a standard that makes it prohibitively difficult for a victim to prove age discrimination. According to the Court, a plaintiff bears the full burden of proving that age was not only a ``motivating'' factor but the ``but for'' factor, or decisive factor. And, unfortunately, just last month the Supreme Court, in University of Texas Southwestern Medical Center v. Nassar, extended Gross to retaliation cases under Title VII of the Civil Rights Act. Moreover, lower courts have extended Gross to other civil rights claims, including cases arising under the Americans with Disabilities Act and the Rehabilitation Act.

The extremely high burden Gross imposes radically undermines workers' ability to hold employers accountable. As Professor Helen Norton testified to the HELP Committee, ``Gross entirely insulates from liability even an employer who confesses discrimination so long as that employer had another reason for its decision. By permitting employers to escape liability altogether even for a workplace admittedly infected by discrimination, with no incentive to refrain from similar discrimination in the future, the Gross rule thus undermines Congress's efforts to stop and deter workplace discrimination.''

Bear in mind, unlawful discrimination is often difficult to detect. Obviously, those who discriminate do not often admit they are acting for discriminatory reasons. Employers rarely post signs saying, for example, ``older workers need not apply.'' To the contrary, they go out of their way to conceal their true intent. The employer is in the best position to offer an explanation of why a decision that involves discrimination or retaliation was actually motivated by legitimate reasons. As Professor Norton testified, ``[s]uch burden shifting appropriately recognizes and responds to employers' greater access to information that is key to proving or disproving an element of a particular claim . . .'' By putting the entire burden on the worker to demonstrate the absence or insignificance of other factors, the court in effect has freed employers to discriminate or retaliate.

Unfortunately, as Mr. Gross and his colleagues know all too well, age discrimination does indeed occur. Countless thousands of American workers who are not yet ready to voluntarily retire find themselves jobless or passed over for promotions because of age discrimination. Older workers often face stereotypes: That they are not as productive as younger workers; that they cannot learn new skills; that they somehow have a lesser need for income to provide for their families.

Indeed, according to an AARP study, 60% of older workers have reported that they or someone they know has faced age discrimination in the workplace. According to the Equal Employment Opportunity Commission, in Fiscal Year 2012, over 2,800 age discrimination complaints were filed, a more than 20 percent increase from just five years ago. Given the stereotypes that older workers face, it is no surprise that on average they remain unemployed for more than twice as long as all unemployed workers.

The Protecting Older Workers Against Discrimination Act reiterates the principle that Congress established when it passed the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Rehabilitation Act and the Americans with Disabilities Act--when making employment decisions it is illegal for race, sex, national origin, religion, age or disability to be a factor.

The bill repudiates the Supreme Court's Gross v. FBL Financial decision and will restore the law to what it was for decades. It makes clear that when an employee shows discrimination was a ``motivating factor'' behind a decision, the burden is properly on the employer to show the same decision would have been made regardless of discrimination or retaliation. And, like the Civil Rights Act of 1991 with respect to discrimination cases under Title VII, if the employer meets that burden, the employer remains liable, but remedies are limited.

This is a common sense, bipartisan bill. In fact, the Civil Rights Act of 1991, key provisions of which served as a model for this legislation, passed the Senate on a bipartisan basis 93-5. Further, we are introducing this bill only after countless hours of consultation with civil rights stakeholders and representatives of the business community. Moreover, this bill addresses the concerns that were raised about an earlier version of the bill at a hearing held before the Health, Education, Labor, and Pensions Committee in March 2010.

In fact, I want to comment on two changes from that earlier version of this bill introduced in the last Congress. Since October 2009, when Senator Leahy and I first introduced the Protecting Older Workers Against Discrimination Act, we have had the benefit of nearly three and a half years of lower court application of the Gross decision.

The 2009 bill would have expressly amended the ADEA to make clear that the analytical framework set out in McDonnell Douglas v. Green applied to that statute. Even though, before Gross, every Court of Appeals had held that McDonnell Douglas had applied to age claims, this clarification was meant to address a footnote in Gross in which the Court arguably questioned the applicability of McDonnell Douglas to the ADEA. Since the bill was first introduced, however, every lower court that has examined the issue has continued to apply McDonnell Douglas to the ADEA. As a result, because McDonnell Douglas applies to the ADEA already, we deem it unnecessary to amend the statute.

Second, the initial bill expressly amended only the ADEA. Since Gross, however, lower courts have applied the Court's reasoning in that decision to

other statutes. Because the most notable application has been to the ADA, Rehabilitation Act and Title VII retaliation claims, those statutes are expressly amended here too.

Finally, in Gross, the Court defended the Court's departure from well-established law by noting that it ``cannot ignore Congress' decision to amend Title VII's relevant provisions but not make similar changes to the ADEA.'' In other words, the Court found that because Congress, in the Civil Rights Act of 1991, codified the ``motivating factor'' framework for discrimination claims under Title VII, but not for the ADEA, Congress somehow must have intended Price Waterhouse not to apply to any statute but Title VII.

Because of the Court's reasoning, I want to emphasize that this bill in no way questions the motivating factor framework for other anti- discrimination and anti-retaliation statutes that are not expressly covered by the legislation. As the bill's findings make clear, not only does this bill repudiate the Gross decision itself, but it expressly repudiates the reasoning underlying the decision, including the argument that Congress's failure to amend any statute other than Title VII means that Congress intended to disallow mixed motive claims under other statutes. It would be an error for a court to apply similar reasoning following passage of this bill to other statutes. The fact that other statutes are not expressly amended in this bill does not mean that Congress endorses Gross's application to any other statute.

In conclusion, this bill is very straightforward. It reiterates what Congress said in 1967 when it passed the ADEA--when making employment decisions it is illegal for age to be a factor. A person should not be judged arbitrarily because he or she was born in a certain year or earlier when he or she still has the ability to contribute as much, or more, as the next person. This bill will help ensure that all our citizens will have an equal opportunity, commensurate with their abilities, for productive employment.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I am proud to be once again reintroducing the Housing Assistance for Veterans Act, HAVEN Act, with my colleague, Senator Johanns.

Last year, we joined forces to successfully pass this legislation as an amendment during the Senate's consideration of the National Defense Authorization Act, NDAA. Unfortunately, due to concerns by some on the Veterans' Affairs Committee, it was not included in the final version of the NDAA. Those concerns have been addressed in this version of the HAVEN Act, and I would like to thank the Veterans' Affairs Committee for working cooperatively with us to strengthen the legislation.

Our veterans have made many personal sacrifices in service to our Nation, and we must honor our commitment to provide them with the care they have earned and deserve. One such way is to ensure that they have access to adequate housing.

According to Rebuilding Together, 5.5 million of our veterans are disabled, and one and a half million are at risk of homelessness. In my home State of Rhode Island, according to the U.S. Census Bureau, there are more than 19,000 veterans with disabilities, each of whom face their own unique challenges in terms of their housing needs.

The Department of Veterans Affairs, VA, has programs that assist veterans in adapting and improving their homes, but unfortunately, these programs do not extend assistance to all veterans with disabilities. It is clear we must do more, and with this legislation, we are seeking to serve all veterans with disabilities, regardless of the severity of the disability and whether the disability is service- connected.

The HAVEN Act will give veterans the opportunity to renovate and modify their existing homes by installing wheelchair ramps, widening doors, re-equipping rooms, and making necessary additions and adjustments to existing structures--all so that these homes are safer and more suitable for our veterans.

Our legislation encourages key stakeholders, such as the Department of Housing and Urban Development, the VA, housing non-profits, and veterans service organizations, to work together to serve our veterans. In order to extend the reach of this Federal funding, grant recipients would be expected to either match Federal funding or make in-kind contributions, through encouraging volunteers to help make repairs or engaging businesses to donate needed supplies.

This bill is supported by the American Legion, Veterans of Foreign Wars, Vietnam Veterans of America, Paralyzed Veterans of America, VetsFirst, a program of United Spinal Association, Iraq and Afghanistan Veterans of America, Habitat for Humanity, and Rebuilding Together. I thank Senator Johanns for working with me on this important bill, and I look forward to working with him and the rest of our colleagues to pass this legislation.

Mr. President, our economy will not work for individuals or for our nation unless we create and support avenues for adults to continue their education and build their skills. These are longstanding issues that I

have worked on for many years, including the last attempt to reauthorize the Workforce Investment Act. I was pleased to work with Senator Webb in the 112th Congress on the Adult Education and Economic Growth Act, and I am proud to reintroduce it today with Senator Brown. I thank Congressman Ruben Hinojosa for introducing the companion legislation in the House of Representatives.

The Adult Education and Economic Growth Act increases the investment in adult education programs; ensures better coordination among adult education programs, workforce development programs, and higher education; strengthens professional development for adult education providers; expands the use of technology in adult education programs; and provides incentives for employers to support their workers who need adult education services.

In Rhode Island, roughly 41 percent of working age adults have a college degree. By 2018, it is estimated that 61 percent of Rhode Island jobs will require some postsecondary education. We have an estimated 91,000 individuals without a high school diploma--the basic ticket to accessing postsecondary education and training.

Nationally, the numbers make a similar case for the need to invest in adult education. According to the National Commission on Adult Literacy, 80 to 90 million U.S. adults today, about half of the adult workforce, do not have the basic education and communication skills required to obtain jobs that pay a family-sustaining wage. These individuals continue to struggle in the recovering economy, with unemployment rates above 10 percent for individuals who do not have a high school diploma, compared to 7.6 percent for high school graduates and less than 4 percent for workers with bachelor's degrees.

Simply put, we will not be able to close the skills gap without a robust investment in adult education. Unfortunately, we have not been making this kind of investment. Funding has been anemic, and as a result, services reach fewer than 3 million adults annually--a fraction of the need.

The Adult Education and Economic Growth will help turn around this dire situation by increasing the authorization for adult education programs authorized under Title II of the Workforce Investment Act to $850 million and establishing a new state technology grant for adult education to upgrade the delivery system and assist adults in attaining critical digital literacy skills. This legislation requires state and local workforce investment boards to address adult education in their plans for using funds authorized under Title I of the Workforce Investment Act, including incorporating adult education into career pathways programs and offering integrated education and training programs. It also strengthens programs and services for English learners, including authorizing the Integrated English Literacy and Civics Program, and for adults with disabilities. The legislation will also build the knowledge base on what works for adult learners through a National Center for Adult Education, Literacy, and Workplace Skills. Finally, the Adult Education and Economic Growth Act will provide employers with tax incentives to invest in developing the basic skills of their employees.

In sum, the Adult Education and Economic Growth Act offers a comprehensive approach to reaching the millions of adults who need basic skills, English literacy instruction, or a secondary school diploma so that they can embark on a career pathway that leads to economic stability and success. I am pleased to have worked with the National Commission on Adult Literacy in developing this legislation. I urge my colleagues to cosponsor this bill and work with me to include its provisions in the pending reauthorization of the Workforce Investment Act.

Mr. President, I would like to offer a few words on a bill that I am introducing today with my colleague and friend, Senator Roy Blunt of Missouri. Upon my arrival to the Senate, Senator Blunt and I shared a conversation in which we discovered our interest in proposing pragmatic legislation that would go about easing the ever-growing regulatory burden borne by businesses across the country. Since then, we have worked together to craft a bill that takes a reasonable approach toward thinning out older regulations that have outlived their utility, all while retaining essential congressional oversight. Today we introduce the Regulatory Improvement Act of 2013, which I believe will achieve this goal.

The Regulatory Improvement Act will create an independent Regulatory Improvement Commission that will be tasked with reviewing outdated regulations with the goals of modifying, consolidating, or repealing regulations in order to reduce compliance costs, encourage growth and innovation, and improve competitiveness. The composition of the commission will be determined by congressional leadership and the President, and the commission will be tasked with identifying a single sector or area of regulations for consideration. After extensive review involving broad public and stakeholder input, the commission will submit to Congress a report containing regulations in need of streamlining, consolidation, or repeal. This report will enjoy expedited legislative procedures and will be subject to an up-or-down vote in both houses of Congress without amendment.

Let me be clear: the intent of this bill is not to engage in a wholesale dismantling of the existing regulatory regime. In particular, I share some of my colleagues concerns that ``regulatory reform'' can be employed as a euphemism to disguise an undercurrent of efforts to completely undo significant legislation--from the Clean Air Act to the Affordable Care Act. I do not support such efforts. That said, I believe there is broad bipartisan consensus that regulations have a cumulative effect and that Congress has neither the expertise nor formal mechanisms through which it can effectively and expeditiously conduct retrospective analyses. A Regulatory Improvement Commission would provide a vehicle for the review of older regulations and provided much-needed relief to businesses struggling to comply with layers of competing or even duplicative regulations.

In a larger sense, this bill seeks to reclaim some of the ground that Congress has ceded to executive agencies in recent years. From my vantage point, the current regulatory structure has become akin to a fourth, unchecked branch of government. As an institution, we must find ways to reverse this disturbing trend and reestablish an appropriate role of congressional oversight. Therefore, I am glad to introduce this bipartisan bill that offers a reasonable way to revisit older regulations, and I thank Senator Blunt for his interest and support of the proposal.

Mr. President, I am introducing today, with my colleagues Senators Durbin, Stabenow, and Brown, the Petroleum Coke Transparency and Public Health Study Act, which would require the Department of Health and Human Services to conduct a study on the health and environmental impacts of petroleum coke. This bill, which is a companion to a bill introduced by Representative Peters on June 6, 2013, was motivated by a situation in Detroit.

In March 2013, large piles of uncontained petroleum coke stored along the banks of the Detroit River became publicly visible, raising questions about the potential environmental and public health impacts. Sitting just feet from the Detroit River, the piles have grown to nearly three stories high over the past several months. I want to make sure that this low-grade fuel does not pose a threat to the people of Detroit or impair our waterways. The Detroit River is a valued resource that must be preserved and protected.

Petroleum coke is a byproduct of refining crude oil into liquid fuels such as gasoline and diesel. It is a commodity that can be cofired with coal to produce low-cost energy. In recent years, a number of U.S. refineries have undergone expansions in order to accommodate increases in processing crude oil, including the Marathon refinery in Detroit, MI; the Cenovus refinery in Wood River, IL; and the BP refinery in Whiting, IN.

With increases in crude oil processing in the United States and Canada, petroleum coke production is expected to rise. However, the impacts of petroleum coke on public health and the environment have not been fully assessed. Further, each State has different regulations for managing, storing, and transporting it. It is important that we understand the market projections for petroleum coke, how to properly manage it, and its potential impacts on public health and the environment.

This bill would address these key knowledge gaps by requiring a comprehensive study on petroleum coke. The study would include an analysis of the public health and environmental impacts of the production, transportation, storage, and use of petroleum coke; an assessment of best practices for storing, transporting, and managing petroleum coke; and a quantitative analysis of current and projected domestic petroleum coke production and utilization locations.

We should ensure that energy production occurs in a diligent and responsible manner and does not harm public health or our environment. With a changing energy market and limited dollars, we must have a comprehensive understanding of how to effectively and efficiently manage our future energy supply. This bill would give us the tools to properly manage petroleum coke production with good environmental and public stewardship.

Mr. President, I am introducing today, with my colleagues Senators Durbin, Stabenow, and Brown, the Petroleum Coke Transparency and Public Health Study Act, which would require the Department of Health and Human Services to conduct a study on the health and environmental impacts of petroleum coke. This bill, which is a companion to a bill introduced by Representative Peters on June 6, 2013, was motivated by a situation in Detroit.

In March 2013, large piles of uncontained petroleum coke stored along the banks of the Detroit River became publicly visible, raising questions about the potential environmental and public health impacts. Sitting just feet from the Detroit River, the piles have grown to nearly three stories high over the past several months. I want to make sure that this low-grade fuel does not pose a threat to the people of Detroit or impair our waterways. The Detroit River is a valued resource that must be preserved and protected.

Petroleum coke is a byproduct of refining crude oil into liquid fuels such as gasoline and diesel. It is a commodity that can be cofired with coal to produce low-cost energy. In recent years, a number of U.S. refineries have undergone expansions in order to accommodate increases in processing crude oil, including the Marathon refinery in Detroit, MI; the Cenovus refinery in Wood River, IL; and the BP refinery in Whiting, IN.

With increases in crude oil processing in the United States and Canada, petroleum coke production is expected to rise. However, the impacts of petroleum coke on public health and the environment have not been fully assessed. Further, each State has different regulations for managing, storing, and transporting it. It is important that we understand the market projections for petroleum coke, how to properly manage it, and its potential impacts on public health and the environment.

This bill would address these key knowledge gaps by requiring a comprehensive study on petroleum coke. The study would include an analysis of the public health and environmental impacts of the production, transportation, storage, and use of petroleum coke; an assessment of best practices for storing, transporting, and managing petroleum coke; and a quantitative analysis of current and projected domestic petroleum coke production and utilization locations.

We should ensure that energy production occurs in a diligent and responsible manner and does not harm public health or our environment. With a changing energy market and limited dollars, we must have a comprehensive understanding of how to effectively and efficiently manage our future energy supply. This bill would give us the tools to properly manage petroleum coke production with good environmental and public stewardship.