July 10, 1968
Page 20466
Mr. MUSKIE. Mr. President, another pollution bill which is pending on the calendar is S. 2525, dealing with pollution from vessels.
In order to avoid a parliamentary problem which might result during the latter days of this session and because I believe the provisions of S. 2525 require congressional action this year, I have prepared an amendment which will include the provisions of S. 2525 as a part of S. 3206.
This amendment is identical to the language of the bill reported by the committee with one minor technical change required to clarify the intent of the committee amendment to section 11 of the Water Pollution Control Act. I will discuss this change in a moment.
S. 2525 would authorize a program for control of pollution from vessels, an amendment to section 11 of the Water Pollution Control Act which relates to control of pollution by Federal agencies, and a simple 1-year extension of the research authorizations in the basic act.
Testimony before the Subcommittee on Air and Water Pollution indicates that sewage discharged from boats, while not comparable to large municipal or industrial sources, is a serious and significant problem in many marinas, ports, harbors, and other confined waterways. Vessel pollution, as a contributor to the Nation's pollution problem, requires action.
The committee does not believe that this problem can be uniformly handled at the State and local level. Boats and boat owners move between States. Many of the Nation's major recreational waterways are interstate, while most commercially used waters are interstate or coastal in nature.
Conflicting State and local laws confuse vessel operators, and strict enforcement can cause undue burdens on the ability of vessels to move freely in interstate commerce.
This same problem is faced by the manufacturers of vessels and the manufacturers of marine sanitation devices. Conflicting State and local laws may require a variety of levels of control and types of devices. The committee believes that this confusion can be eliminated by Federal preemption of the authority to certify marine sanitation devices.
Federal standards of performance for devices are intended to define adequate levels of treatment within the limits of economic and technical feasibility. The Secretary is expected to set performance standards at the highest levels necessary, within the limits set by subsection (a), to assure effective results from this legislation and to lessen the need for other State and local regulations.
The committee is concerned that many State and local laws, passed and under consideration, require sewage holding tanks as a means of pollution control. Holding tanks are, and must continue to be, an alternative control method. However, to require this type of device without providing pump-out and disposal facilities in ports, harbors and marinas would be futile.
This legislation does not abridge the right of a State or political subdivision to prohibit discharges. Local problems may require this type of action if local water quality standards are to be achieved. The committee recommends, however, that prohibition of sewage discharge be an alternative applied only in restricted areas and further, that the Secretary of the Interior review the Federal sewage-treatment construction grant program to ascertain the extent to which Federal funds can be made available to assist States and local government in constructing alternative waste disposal facilities for those restricted areas.
S. 2525 provides a means to achieve a uniform and effective vessel pollution control program.
S. 2525 would authorize a program for control of pollution from vessels, an amendment to section 11 of the Water Pollution Control Act which relates to control of pollution by Federal agencies, and a simple 1-year extension of the research authorizations in the basic act.
Mr. President, I ask unanimous consent to have printed in the RECORD, following my remarks, a discussion of the key provisions of S. 2525 as contained in the committee report, section 18.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. MUSKIE. Mr. President, earlier, I indicated that this amendment is identical to S. 2525 as reported, except for minor change in the Federal agencies cooperation language.
Questions have been raised regarding the purpose and intent of the committee amendment to section 11 of the act which requires Federal agencies to insure compliance with water quality standards in their contracts, permits, licenses, and leases.
I do not know how the committee's directive can be more clearly stated. The committee is not satisfied with the role of Federal agencies in preventing pollution from both direct and related activities. Some agencies have been reluctant to accept the directive of the President to move effectively to improve water quality.
The amendment to section 11 is intended to clarify the position of the Congress in this regard by imposing a requirement that Federal agencies cooperate with pollution control efforts of the Secretary of the Interior.
By including specific reference to contracts, licenses, leases and permits, the committee intends to require full recognition of water quality in carrying out these related activities. As indicated in the report, the committee looks to the agencies of the executive branch to take the initiative in insuring compliance with water quality standards.
In order to make the intent of the committee clear, I have prepared an amendment to clarify any confusion regarding the extent to which Federal agencies should cooperate with the Secretary to assure water quality compliance.
On page 21, line 10, of S. 2525 -- which is pending -- after "(a) It is hereby declared to be the intent of the Congress that" has been deleted. By eliminating the declaration of intent, this amendment clearly states the pollution responsibility of Federal agencies in both direct and related activities.
In order to carry out the purpose of this revised section, Federal agencies will necessarily have to add such conditions to contracts, licenses, leases, and permits as may be necessary to insure compliance with water quality standards.
The committee intends to continue its current investigation of Federal agencies' compliance with this act and the President's Executive order on water pollution.
Should future hearings indicate a lack of initiative and a failure to meet water quality needs in these areas, additional legislation may be considered to give the Secretary of the Interior prior review and approval authority in connection with any Federal activity which may affect water quality.
This amendment also extends, for 1 year, the research authorizations for water pollution. The committee considered several changes in the existing research section of the act and decided that these proposals should await program review scheduled for early in the next Congress.
At the same time, the committee recognized the need to extend these important authorizations through fiscal year 1970 so that the program could receive appropriations in regular order next year.
Cognizant of the concern for economy, the committee did not increase the level of authorization for any of the five research programs. I ask unanimous consent to have printed in the RECORD a breakdown of these programs and the appropriations made and requested for fiscal year 1968 and fiscal year 1969, respectively.
There being no objection, the breakdown was ordered to be printed in the RECORD.
[Table omitted]
EXHIBIT 1 SECTION 18
(a) The committee intends that this new section preclude, at the earliest possible time permitted by existing and advancing technology, economics, and other practical considerations, the discharge into the navigable waters of the United States of raw or inadequately treated sewage from vessels. The Federal Water Pollution Control Act charges the Secretary with the responsibility for approving water quality standards to maintain and enhance the quality and value of our water resources. Consonant with this responsibility, subsection 18(a) requires that the Secretary must promulgate performance standards indicating what a sewage treatment or holding device must do to be acceptable for marine use. This performance standard is intended to define adequate treatment, holding, or other end results.
Consultation with the Commandant of the Coast Guard is required because of the practical necessity of considering marine design and other marine environmental factors in the development of feasible performance standards. The Commandant of the Coast Guard shall promulgate the regulations which pertain to marine design requirements both as to the device itself and the manner of installation and operation, in order to insure adequate recognition of marine safety and other aspects.
Additionally, the Commandant's regulations must assure compliance with the water quality end result which the Secretary has defined. It is apparent and specifically intended that there must be close coordination and cooperation between the Secretary and the Commandant in development of the overall regulatory program.
The distinction between new and existing vessels is intended to recognize the need, particularly at the outset, for a different approach both in defining a realistic equipment performance standard and in devising the manner of achieving the most satisfactory solution possible.
The committee recognizes that many vessel owners have installed marine sanitation devices pursuant to State laws, regulations, and Public Health Service recommendations. The committee lauds these efforts and does not intend to penalize the vessel owners so long as the installed sanitation devices continue to conform to such laws, regulation, and recommended levels.
However the committee does not believe that the fact that devices were installed prior to the effective date of Federal standards and regulations should be prima facie evidence of compliance. Both Coast Guard and appropriate State agencies should make every effort to assure that these devices continue to comply with the regulations which required their installation.
(b) The provisions of subsection (b) are directed at implementation of promulgated performance standards and other equipment requirements. Because conformance with promulgated requirements can be more practically achieved in the design and construction of new vessels, whatever the size a shorter period of time for compliance is provided.
Implementation for existing vessels is more complex. It will be difficult to define the full scope of the problem until device performance standards and regulations directed at attaining the desired objectives are developed. Implementation of standards and device installations which are as stringent as those provided for new vessels may not be generally achieved for some time. Time necessary for design and manufacture of devices as well as limited physical capability of existing shipyards and ship repair facilities work against rapid solution of the existing ship sewage discharge problem.
These considerations as well as other diverse factors such as vessel size, type, mode, and locale of operation require ultimate flexibility in application of standards and regulations. Accordingly, subsection (b) (2) is intended to permit application of standards and regulations by category as appropriate.
There is also created a waiver authority which either the Secretary or the Commandant of the Coast Guard, with regard to their respective regulatory authority under this section, can exercise as necessary. It is declared to be the intent of this committee that this subsection not suggest dilatory implementation, but rather a practical, flexible, and workable program from which maximum benefits can be realized in the shortest possible time.
(c) The committee intends that the Department of Defense take all necessary steps to comply with the standards promulgated pursuant to subsection (a). The Defense Department has a special responsibility. National attention is constantly focused on naval vessels, requiring pollution control to be as much a matter of public relations as public responsibility. Therefore the committee believes the Department of Defense should take a strong leadership role in both development and application of vessel pollution control technology.
At the same time the committee does not believe it is necessary for the Coast Guard to supervise the Defense Department program. It is the intent of the committee that these two Federal agencies and the Department of the Interior develop a coordinated plan to achieve the pollution abatement objectives of the legislation. Further, the committee intends that the Department of Defense should report periodically, within the limits of national security, to the Congress regarding progress in meeting and exceeding standards of performance.
The committee strongly urges the Department of Defense to request such funds as may be necessary to implement vessel pollution control, and to assist the Secretary and the Commandant by providing information on technology developed to implement the purposes of this act.
(e) The committee intends that Federal standards and regulations should. to the fullest extent practicable, preempt new or conflicting State laws and regulations related to vessel pollution. Preemption is necessary to insure protection of the boat owner who moves in interstate commerce and the manufacturer who delivers marine sanitation devices in interstate commerce.
While the committee has provided for preemption, it is recognized that a number of States and political subdivisions will have adopted vessel pollution control programs prior to enactment of the act. To the extent that those programs are not inconsistent or in conflict with the Federal regulations and standards, the committee intends that they should continue in effect.
The question of consistency between Federal and State or local law is not a final judgment which rests with administrative officials. To expedite a decision, the committee has authorized the Secretary and the Commandant to review existing State law. The Administrative Procedure Act will apply in making this review. If the Secretary or Commandant determines that a State or local law is inconsistent or in conflict with Federal standards and regulations, the State may seek judicial review.
(f) Uniform and effective control of vessel sewage discharge or effluent can only be achieved practically by control of the shipboard device which will contain and treat raw sewage.
Subsection (f) is intended to furnish the necessary Federal control through a system of Coast Guard certification of acceptable devices. Though a manufacturer's application will be submitted to the Coast Guard for action, the Secretary of the Interior's primary interest and responsibility for performance standards requires that this aspect of Coast Guard testing be in accordance with the former's direction, and that the Secretary make the ultimate determination of acceptability of performance. If the Commandant determines that the device is satisfactory for marine use in the application of which intended, he will issue certification.
(n) The committee intends that the State and local responsibility for control of vessel pollution should be emphasized. This provision is designed to assist in development of State enforcement programs which will lessen the need for direct Federal involvement in the control and administration of pollution from recreational vessels and encourage broader State participation in these activities.
Most States presently have programs which require numbering of recreational water-craft, and every State has a water pollution control program. It is therefore logical that the enforcement of the pollution from recreational vessels be delegated to the extent feasible, to the appropriate State agencies.
At the same time, the committee does not believe that the best interest of the Nation will be served by delegating the responsibility for control of pollution from commercial vessels which generally move in interstate or international commerce.
The Secretary should rapidly move to establish guidelines to direct the States in development of approved programs whereby the provisions of subsection (n) can become fully effective. Distribution of these guidelines should, if possible, precede promulgation of standards or regulations so that State programs can be adopted prior to the effective date of any standards or regulations.
The committee does not feel that it is necessary, at this time, for the secretary of Interior and the Commandant of the Coast Guard to expand their respective personnel to enforce recreational vessel compliance with this act. Should a State fail to adopt an approved program Federal personnel will have to be added. However, this subsection should have the effect of transferring this enforcement responsibility to the States.
The grant program authorized under this subsection is intended to facilitate State action and enable States to expand existing vessel and water pollution related activities. No additional funds are authorized due to lack of information on the cost of this program. The Secretary is expected to request necessary funds pursuant to the general authorization contained in sec. 12(c) of the Federal Water Pollution Control Act, as amended.
Mr. MUSKIE. Mr. President, I recommend adoption of the amendment.
The PRESIDING OFFICER. The amendment will be stated.
The assistant legislative clerk proceeded to read the amendment.
Mr. MUSKIE. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered; and the amendment will be printed in the RECORD.
The amendment offered by Mr. MUSKIE is as follows:
At the end of the bill insert the following: "SEC. 4. Section 18 of the Federal Water Pollution Control Act as amended (33 U.S.C. 466n) is amended to read as follows:
"'CONTROL OF SEWAGE FROM VESSELS "
'SEC. 18 (a) (1) As soon as possible after the enactment of this section, the Secretary, after consultation with the Commandant of the Coast Guard and after giving appropriate consideration to available technology and economic costs, shall promulgate Federal standards of performance for marine sanitation devices (hereinafter referred to as "standards") which shall be designed to prevent the discharge of untreated or inadequately treated sewage into or upon the navigable waters of the United States from new vessels and existing vessels, except (A) existing commercial fishing vessels forty-five feet or under in length, and (B) new or existing vessels not equipped with installed toilet facilities. Such standards shall be consistent with maritime safety and the marine and navigation laws and regulations and shall be coordinated with the regulations issued by the Commandant of the Coast Guard under this subsection. The Commandant of the Coast Guard shall promulgate regulations, which are consistent with the standards under this section and with maritime safety and the marine and navigation laws and regulations, governing the design, construction, installation, and operation of any marine sanitation device on board such vessels.
"'(2) Any existing vessel equipped with a device or devices installed pursuant to the requirements of State law, regulation, or recommended levels of control set forth in the Handbook on Sanitation and Vessel Construction (Public Health Service, 1965) prior to the effective date of initial standards and regulations required by this section shall be deemed in compliance with this section until such time as the device or devices are replaced or are found not to be in compliance with such State law, regulation, or recommended level.
"'(b) (1) Initial standards and regulations under this section shall become effective for new vessels two years after promulgation, but not earlier than September 1, 1970, and for existing vessels five years after promulgation.
"’2) The Secretary and the Commandant of the Coast Guard, with regard to their respective regulatory authority established by this section, may distinguish among classes, types, and sizes of vessels as well as between new and existing vessels, and may waive applicability of standards and regulations for such periods of time as necessary or appropriate for classes, types, and sizes of vessels and, upon application, for individual vessels
"'(c) The provisions of this section and the standards and regulations promulgated thereunder apply to vessels owned and operated by the United States unless the Secretary of Defense finds that compliance would not be in the interest of national security
"'(d) Before the standards and regulations under this section are promulgated the Secretary and the Commandant of the Coast Guard shall consult with the Secretary of State; the Secretary of Health, Education and Welfare; the Secretary of Defense; the Secretary of Commerce; other interested Federal agencies; and the States and industries interested; and otherwise comply with the requirements of section 553 of title 5 of the United States Code.
"'(e) (1) After the effective date of this subsection, no State or political subdivision thereof shall adopt or enforce any statute or regulation with respect to the use of any marine sanitation device with any vessel subject to the provisions of this section, except as provided in this subsection and subsection (n) of this section.
"'(2) Any State or political subdivision thereof having, on the effective date of this section, any statute or regulation with respect to such device may continue to enforce such statute or regulation unless the Secretary or the Commandant of the Coast Guard determines, in accordance with section 553, title 5 of the United States Code, that said statute or regulation is inconsistent or in conflict with any standard or regulation promulgated under this section. Any such determination shall be subject to judicial review.
"'(f) (1) No manufacturer of a marine sanitation device shall sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States for sale or resale any marine sanitation device manufactured after the effective date of the standards and regulations under this section unless such device is in all material respects substantially the same as a test device certified under this subsection.
"'(2) Upon application of the manufacturer, the Commandant of the Coast Guard shall certify a marine sanitation device if he determines, in accordance with the provisions of this paragraph, that it meets the appropriate standards and regulations promulgated under this section in accordance with the provisions of this paragraph. The Commandant shall test or require such testing of the device in accordance with procedures set forth by the Secretary as to standards of performance and for such other purposes as may be appropriate. The Secretary, upon notification of the results of such tests, shall determine if such results are in accordance with the appropriate performance standards promulgated under this section and shall notify the Commandant of his determination. Upon such notification the Commandant, if he determines that the device is satisfactory from the standpoint of safety and any other requirements of maritime law or regulation, and after consideration of the design, installation, operation, material, or other appropriate factors, shall certify it. Any device which is in all material respects substantially the same as the certified test device shall be deemed to be in conformity with the standards and regulations established under this section.
"'(3) Every manufacturer shall establish and maintain such records, make such reports, and provide such information as the Secretary or the Commandant may reasonably require to enable him to determine whether such manufacturer has acted or is acting in compliance with this section and regulations thereunder and shall, upon request of an officer or employee duly designated by the Secretary or the Commandant permit such officer or employee at reasonable times to have access to and copy such records. All information reported to, or otherwise obtained by, the Secretary or the Commandant or their representatives pursuant to this subsection which contains or relates to a trade secret or other matter referred to in section 1905 of title 18 of the United States Code shall be considered confidential for the purpose of that section, except that such information may be disclosed to other officers or employees concerned with carrying out this section.
"'(g) After the effective date of standards and regulations promulgated under this section it shall be unlawful
"'(1) for the manufacturer of any vessel subject to such standards and regulations to manufacture for sale, to sell or offer for sale, or to distribute for sale or resale any such vessel unless it is equipped with a marine sanitation device certified pursuant to this section;
"' (2) for a vessel subject to such standards and regulations to discharge sewage into or upon the navigable waters of the United States in violation of such standards and regulations or to be operated on such waters without an installed marine sanitation device certified pursuant to this section or otherwise in compliance with regulations;
"'(3) for any person to fail or refuse to permit access to or copying of records or to fail to make reports or provide information required under this section; and
"'(4) for any person wrongfully to remove or render inoperative any certified marine sanitation device or element of design of such device installed in a vessel prior to its sale or delivery to the ultimate purchaser.
"'(h) The district courts of the United States shall have jurisdiction to restrain violators of subsection (g) of this section. Actions to restrain such violators shall be brought by, and in, the name of the United States. In any such action, subpoenas for witnesses who are required to attend a district court in any district may run into any other district.
"' (i) Any person who knowingly violates clauses (1) or (4) of subsection (g) of this section shall, upon conviction, be fined not more than $2,500 or imprisoned for not more than one year, or both. Each violation shall constitute a separate offense.
“‘(j) Any person who violates a provision of this section or any regulation issued thereunder shall be liable to a civil penalty of not more than $1,000 for each violation. The Commandant of the Coast Guard may assess and collect any such penalty and may remit or mitigate any penalty imposed under circumstances he considers appropriate.
"'(k) The provisions of this section shall be enforced by the Commandant of the Coast Guard, and he may utilize by agreement with or without reimbursement law enforcement officers or other personnel and facilities of the Secretary or other Federal agencies to carry out the provisions of this section.
"'(l) Anyone authorized by the Commandant of the Coast Guard to enforce the provisions of this section may, except as to public vessels, (1) board and inspect any vessel upon the navigable waters of the United States, (2) with or without a warrant arrest any person who violates the provisions of this section or any regulation issued thereunder in his presence or view, and (3) execute any warrant or other process issued by an officer or court of competent jurisdiction.
"'(m) In the case of Guam actions arising under this section may be brought the district court of Guam, and in the case of the Virgin Islands such actions may be brought in the district court of the Virgin Islands. In the case of American Samoa such actions may be brought in the district court of the United States for the district of Hawaii, and such court shall have jurisdiction of such actions.
"'(n) (1) The Secretary is authorized make grants to any State, which adopts and enforces an adequate program approved by the Secretary after consultation with the Commandant, to control the discharges into the navigable waters of the United States of untreated or inadequately treated sewage and other wastes from recreational vessels The Secretary shall approve any State program which –
"'(A) is not inconsistent with Federal standards and regulations except to an extent as otherwise provided in subsection (e) (2) of this section;
"'(B) designates the State authority or agency which will administer the program; and
"'(C) otherwise complies with regulations to be prescribed by the Secretary for the establishment of State programs.
" ' (2) Such annual grants to any State with an approved program shall not exceed 50 per centum of the annual cost of such program. Such moneys shall be available solely for administration of the approved program.
"'(0) For the purpose of this section, the term
"'(1) "new vessel" includes every description of watercraft or other artificial contrivance used, or to be used, as a means of transportation on the navigable waters of the United States, the construction of which is completed after promulgation of standards and regulations under this section;
"'(2) "existing vessel" includes every description of watercraft or other artificial contrivance used, or to be used, as a means of transportation on the navigable waters of the United States, the construction of which is completed before promulgation of standards and regulations under this section;
"'(3) "recreational vessel" means any vessel operated primarily for noncommercial use and not required to have a valid Coast Guard Certificate of Inspection;
"'(4) "commercial fishing vessel" means a vessel engaged in the business of taking of fish. mollusks, or crustaceans for subsequent sale;
"'(5) "public vessel" means a vessel owned and operated by the United States, or by a State, or, except where such vessel is engaged in commercial activities by a foreign nation;
"'(6) "person" means an individual, partnership, firm, corporation, or association, but does not include an individual on board a public vessel;
"'(7) "United States" includes the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa;
"'(8) "sewage" means human body wastes and the wastes from toilets and other receptacles intended to receive or retain body wastes;
"'(9) "manufacturer" means any person engaged in the manufacturing, assembling, or importation of vessels capable of having on board marine sanitation devices or of such devices; and
"'(10) "marine sanitation device" means any equipment on board a vessel designed to receive, retain, treat, or discharge sewage.'
"SEC. 5. Section 11 of the Federal Water Pollution Control Act is amended to read as follows:
"'COOPERATION BY OTHER FEDERAL DEPARTMENTS AND AGENCIES TO CONTROL POLLUTION
"'SEC. 11 (a) Any Federal department or agency –
"' (1) having jurisdiction over any building, installation, or other property, or
"'(2) which carries out, or issues any lease, license, or permit or enters into any contract for, any activity, shall, insofar as practicable and consistent with the interests of the United States and, where applicable, within any available appropriations, cooperate with the Secretary, and with any State or Interstate agency or municipality having jurisdiction over waters into which any matter is discharged from such property, or which is affected by such activity, to insure compliance with applicable water quality standards and the purposes of this act'
"SEC. 6. (a) Section 5 of the Federal Water Pollution Control Act is amended
" (1) in subsection (g)(4), by striking out 'and June 30, 1969' and inserting in lieu thereof 'June 30, 1969, and June 30, I970'; and
"(2) in subsection (h), by inserting a comma, and 'and for the succeeding fiscal year' after '1969'.
"(b) Section 6 of such Act is amended"(1) in clause (1) of subsection (e) by striking out 'three succeeding' and inserting in lieu thereof 'four succeeding'; and
"(2) in clauses (2) and (3) of such subsection by striking out 'two succeeding' and inserting in lieu thereof 'three succeeding'."