CONGRESSIONAL RECORD -- SENATE
October 7, 1969
Page 28983
Mr. TYDINGS. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. TYDINGS. Mr. President, my amendment No. 178 is pending, and I would appreciate it if I could get the views of the distinguished chairman of the Subcommittee on Air and Water Pollution.
Mr. MUSKIE. Mr. President, may I say, in response to the distinguished Senator from Maryland, in commenting on his amendment, that I have a great deal of sympathy for it, especially since, as he knows, my own State would benefit from its application.
May I say, in addition, that when the amendments of 1966 were approved, I felt one of the most important provisions in those amendments was the reimbursement provision, to which the Senator's amendment is addressed.
But let me make the third point, that that provision was, nevertheless, geared to the total authorizations of that bill, which, as the Senator in his comments has pointed out, have never been fully funded, or even reasonably funded, I think, since that time.
For that reason, the problem that the Senator's amendment poses for us is whether or not, on the basis of current funding, or even anticipated funding, the Senator's amendment would be a fair allocation of the funds as between the authorization provisions of the public law and this reimbursement provision.
Frankly, I do not consider myself to be in a fair position to pass on that point, so I would like to suggest to the Senator two things: First, that we will hold hearings next year, as we had planned, on the whole question of funding the program; second, we are hopeful, from conversation we have had on this side and from discussions with Members of the House, that the waste treatment program will be funded up to $600 million this fiscal year.
If it is, I think we will have a strong base in next year's hearings to adequately support the principle that the Senator is interested in. We will hold those hearings. We had planned to hold
them, in any event. I think, if we can get the favorable action from the Appropriations Committees in both Houses that we expect, we will be in a good position to move next year on the reimbursement provision.
The distinguished Senator from New York is also interested in this problem, and it might be useful to engage in a colloquy at this point.
Mr. JAVITS. Mr. President, will the Senator yield?
Mr. TYDINGS. I yield to the Senator from New York.
Mr. JAVITS. As a Senator from a State which has half of the advance funding, and who has always expressed interest in such funds, naturally I would vote with the Senator from Maryland (Mr. TYDINGS), if it came to a vote.
We have faced this problem, and we realize that we had a pretty slippery hill to climb in trying to allocate an appropriate amount with respect to expenditures. So I proposed an amendment, which I have had printed, which sought to allow the Secretary of the Interior to apply to reimbursable payments at least the difference between what was appropriated for the States and what was actually spent by the States; that is, what was actually left over. For example, if $600 million had been appropriated and $100 million had not been actually spent, the net $100 million would go to reimburse States which had been engaged in advance funding, a total of 32 States actually involved.
I have conferred with the manager of the bill on this matter and with the Senator from Maryland (Mr. TYDINGS).
I hope very much the Senator from Maryland will consider this amendment I now propose as an interim effort intended to be of some help to the 32 States concerned, which include Maryland, my own State, and five other States to which the Senator from Maryland has referred. In addition -- not in substitution for, but in addition -- to provisions of existing law allowing the Secretary of the Interior to apply unobligated construction grant funds to projects approved under this act for which grants have not been made because of lack of funds, I am suggesting an alternative application of the funds; "or for the purpose of making reimbursements pursuant to the sixth and seventh sentences of this subsection, or both."
The sixth and seventh sentences provide for reallotment in the way I have described for money not actually expended, and now I am suggesting also giving accommodation to States where not only State funds but local funds may have been spent in lieu of Federal funds.
Really, it expands the options of the Secretary.
It may be that, subject to the study which the committee may make which may dictate a mandatory re-allocation which incidentally I think is very properly sought by the Senator from Maryland (Mr. TYDINGS) this proposal would at least give the Secretary more latitude. Then we would hope, in making our presentation to the committee of the Senator from Maine (Mr. MUSKIE), that the committee would feel persuaded that we ought to have some provision along the lines of what the Senator from Maryland (Mr. TYDINGS) has suggested.
While I favor the amendment of the Senator from Maryland, in view of the position of the chairman of the committee, I doubt very much that it would get anywhere for either of us, so I would hope perhaps that the Senator from Maine (Mr. MUSKIE) could at least expand the options of the Secretary as an interim measure. I hope the Senator from Maryland would join me in such substitute and then that the committee would go ahead and study whether even more might be done for the States which engage in such extended forward operations.
Mr. TYDINGS. Mr. President, as the Senator mentioned, I conferred with him earlier. I think his amendment is a sound one. I would be happy to join with him in the substitution of his amendment for mine. I think one thing it does is put Congress clearly on record that, as funds become available, those States which provide an advanced funding under the Water Quality Standards Act of 1966 will be reimbursed.
Mr. JAVITS. Mr. President, if the Senator will yield for that purpose, I will submit, for the Senator from Maryland (Mr. TYDINGS) and myself, a substitute amendment.
The PRESIDING OFFICER. Does the Senator from Maryland wish to withdraw his amendment or modify his amendment?
Mr. JAVITS. Mr. President, I would suggest that he leave it. Let me offer my amendment. If it is adopted, at least he has not compromised his position.
Mr. TYDINGS. Mr. President, I will follow the suggestion of the Senator from New York.
The PRESIDING OFFICER. The substitute amendment offered by the Senator from New York and the Senator from Maryland will be stated.
The legislative clerk read the amendment, as follows:
On page 73, between lines 15 and 16, insert the following:
"Sec. 106. Section 8(c) of the Federal Water Pollution Control Act is amended in the fourth sentence by inserting after 'because of lack of funds' the following: 'or for the purpose of making reimbursements pursuant to the sixth and seventh sentences of this subsection, or both'."
On page 73, lines 16, 19, and 23, redesignate sections 106, 107, and 108 as sections 107, 108, and 109, respectively.
The PRESIDING OFFICER. The question is on agreeing to the substitute amendment.
Mr. MUSKIE. Mr. President, just a word to express my support of the amendment offered by the Senator from New York and the Senator from Maryland. Each of our States is involved in this problem, and I think it is a healthy thing to reemphasize that there has been, by this amendment, a restatement of the moral commitment which I think we have made. I am delighted to support the amendment at this time.
The PRESIDING OFFICER. The question is on agreeing to the Javits-Tydings substitute amendment for the original Tydings amendment.
The amendment was agreed to.
Mr. JAVITS. Mr. President, I move to reconsider the vote by which the amendment was agreed to.
Mr. TYDINGS. Mr. President, I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. JAVITS. I thank my colleague.
Mr. TYDINGS. I thank the distinguished chairman of the committee.
The PRESIDING OFFICER. The question now recurs on the amendment of the Senator from Maryland as amended by the substitute amendment. The amendment, as amended, was agreed to.
Mr. JAVITS. Mr. President, I move to reconsider the vote by which the amendment was agreed to.
Mr. TYDINGS. Mr. President, I move to lay that motion on the table.
The motion to lay on the table was agreed to.
WATER QUALITY IMPROVEMENT ACT OF 1969
The Senate resumed the consideration of the bill (S. 7) to amend the Federal Water Pollution Control Act, as amended, and for other purposes.
Mr. MUSKIE. Mr. President, I have sent a technical amendment to the desk, which I now call up.
The PRESIDING OFFICER. The amendment offered by the Senator from Maine will be stated.
The bill clerk read the amendment, as follows:
On page 44, line 4, after the period insert the following:
"In the case of any action pursuant to this subsection such insurer or other person shall be entitled to invoke all rights and defenses which would have been available to the owner or operator if an action had been brought against him by the claimant, and which would have been available to him if an action had been brought against him by the owner or operator.".
On page 57, line 4 strike out "and".
Mr. MUSKIE. Mr. President, since reporting S. 7 it has come to the attention of the committee, as a result of correspondence from the British maritime insurance underwriters, that the liabilities provided in this legislation will be uninsurable unless the insurer or person providing evidence of financial responsibility, as required by subsection (f) (2), is specifically guaranteed the same rights as available to the owner or operator of a discharging vessel. The amendment which I am now offering carries out that purpose and has the same defenses as would have been available in an action between the insurer and the vessel.
The committee intended that the insurer have the same rights and defenses as an owner or operator. This amendment is technical to the extent that it clarifies the committee intent. The committee wants to make absolutely certain that the liabilities established in this legislation are not made uninsurable by a misunderstanding of the legislative intent.
I move the adoption of the amendment.
The PRESIDING OFFICER. The question is on agreeing to the amendment offered by the Senator from Maine.
The amendment was agreed to.
The PRESIDING OFFICER. The bill is open to further amendment.
Mr. MUSKIE. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. MUSKIE. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. MATHIAS. Mr. President, will the Senator yield?
Mr. MUSKIE. I yield to the distinguished Senator from Maryland.
AMENDMENT NO. 205
Mr. MATHIAS. I thank the Senator from Maine for yielding to me.
I call up my printed amendment No. 205, which is a very simple amendment. It merely provides for a further opportunity for the public to participate, where that is appropriate, in the process of the granting of a license or an application, or of some change in an application or a license, and that when proper demand is made, with proper notice, there shall be a right of public hearing.
That is really all that the amendment provides, and I think it is so simple and so consistent with what we have been trying to do in every area of government, which is to provide, for the public interest, that there be a valid explanation or defense, that I respectfully solicit the support of the Senate for this amendment.
The PRESIDING OFFICER. Does the Senator wish to call up his amendment at this time?
Mr. MATHIAS. I call up the amendment.
The PRESIDING OFFICER. The amendment will be stated.
The BILL CLERK. The Senator from Maryland (Mr. MATHIAS) proposes an amendment (No. 205) as follows:
On page 62, line 25, after "application," insert "and after providing an opportunity to interested persons for a public hearing.".
Mr. MUSKIE. Mr. President, as I understand the amendment of the distinguished Senator from Maryland, it would apply to section 16(c), which requires that there be State certification of compliance with water quality standards on any application for a Federal license or permit. What the Senator from Maryland would propose is that a public hearing be held, or be required, in any State involving certification of such an application.
Mr. MATHIAS. If interested persons so request.
Mr. MUSKIE. That is right. I think it is a reasonable amendment, Mr. President; indeed, I compliment the Senator on offering it. It has been the general thrust of the committee's approach to this problem to require public hearings, so that interested members of the public as well as the parties directly involved could have an influence upon the public policy that is developed.
So I am happy to support the amendment in behalf of the committee.
Mr. GRIFFIN. Mr. President, I rise to voice my support to the amendment offered by the distinguished junior Senator from Maryland.
An important step forward in the prevention of water pollution would be taken in the Water Quality Improvement Act of 1969 by requiring federally licensed facilities to obtain State certification that water quality standards will be met before a construction or operating license is issued.
The amendment before us will strengthen the certification process provided in the legislation by permitting a public hearing to be held at the request of an interested party before certification is granted. One of the primary purposes of this proposal is to deal with the unique problem of thermal pollution from nuclear reactors. Since the Atomic Energy Commission has no jurisdiction to consider environmental effects in its licensing function, the potential hazards of thermal discharges have not received adequate preinstallation consideration. Consequently, in order to provide the fullest opportunity for expert analysis of this problem, provision for a public hearing is absolutely necessary.
Although all of the States have adopted or are in the process of adopting temperature standards, there is still much to be learned in terms of the effect on the reproductive cycle of fish and the development of slime and aquatic weeds through the diminution of dissolved oxygen in the water. A report by a special committee on nuclear discharges appointed by Lake Michigan area States and the U.S. Department of the Interior states:
Because of relatively limited attention to thermal pollution in the past, there are few experts in the disposal of waste heat and many gaps in knowledge of behavior of waste heat in receiving waters, of its effects on water quality and uses, and of the most efficient and economical methods of disposal without damage to the aquatic environment. For example, methods of calculating the patterns that will be assumed in lake waters by heated water discharges, and the rates of cooling that may be anticipated in the receiving waters are in the developmental stage. Much additional research will be necessary before it will be possible to predict with assurance what heated water will do when discharged to a lake.
Probably one of the most uncertain factors is the quantitative effect of many nuclear powerplants.
By 1980, it is estimated that 30 percent of the Nation's generating capacity will come from nuclear power. At present, in Michigan, there are two operable nuclear plants with five more in the planning and construction stages. Also, within the next 10 to 15 years there may be as many as 10 nuclear plants discharging into Lake Michigan. Thus, the almost certain large increase in nuclear facilities is reason enough for close scrutiny of each proposed plant.
Mr. President, I believe that the proposed amendment will improve the provisions in S. 7 and, by not requiring a hearing in every instance, will not unduly hamper the certification process. I might point out that Michigan is one of several States which requires that proposed uses of State waters meet applicable water standards and which provides for public hearings before approval of the use is granted. The success and feasibility of Michigan's statutory scheme emphasizes the need to insure that all State pollution standards are adhered to before any damage has occurred.
The PRESIDING OFFICER. The question is on agreeing to the amendment (No. 205) of the Senator from Maryland.
The amendment was agreed to.
The PRESIDING OFFICER. The bill is open to further amendment. What is the will of the Senate?
Mr. MATHIAS. Mr. President, I move to reconsider the vote by which my amendment (No. 205) was agreed to.
Mr. MUSKIE. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. What is the will of the Senate?
Mr. ELLENDER. Mr. President, will the Senator from Maine yield?
Mr. MUSKIE. I am happy to yield to the Senator from Louisiana.
Mr. ELLENDER. As chairman of the Subcommittee on Public Works of the Appropriations Committee of the Senate, I have under my jurisdiction the duty of providing funds for the Atomic Energy Commission. A question has lately arisen about pollution that may result from the construction of atomic powerplants throughout the United States.
My question is whether or not this bill is broad enough to require that those who apply for a license to construct a nuclear plant will be regulated under the bill now before us.
Mr. MUSKIE. Yes; they will be subject to regulation under the bill, but I think I ought to go into a little bit of detail on that, so that the Senator may fully understand how it does so.
Under section 16(c) (1) there is a requirement, on page 62 of the bill, which reads as follows:
Any applicant for a Federal license or permit to construct or operate any facility or to conduct any activity which may result in any discharge into the navigable waters of the United States shall provide certification from the State in which the discharge originates or, if appropriate, the interstate water pollution control agency to the licensing or permitting agency and notice thereof to the Secretary that there is reasonable assurance that such facility or activity will comply with applicable water quality standards.
In order to trigger that provision of the bill, may I say to the Senator, it is necessary that the States develop water quality standards applicable to this problem. The States have not, up to this point, done so, as they would need to do if we are really to come to grips with the problem which concerns the Senator. It seems to us that this is the machinery which we ought to get started on this problem.
Under the water quality setting standards of the 1965 act, the Secretary can apply pressure, especially following this mandate, upon the States to develop those standards, and once such standards are developed, they are subject to the Secretary's approval, and then subject to enforcement under the 1965 act, first by the States, but ultimately by the Secretary.
So there will be a little time involved, but this legislation will be effective so that, at some paint in the not too distant future, it will begin to bite.
Mr. ELLENDER. But the States, as the Senator has stated, would first have to act?
Mr. MUSKIE. Yes.
Mr. ELLENDER. They would have to set State standards?
Mr. MUSKIE. Yes; most of the States may now have legislation adequate to such standards. I think they do, under the 1965 act.
Mr. ELLENDER. As the Senator may know, I understand that of the 17 or 18 plants that have been completed, some have been closed down because of the fact that there was an indication that water in the neighborhood, or even in the general environment of the place, was becoming polluted from the operation of such atomic-powered electric powerplants; and it would seem to me that we ought to place in this bill, if it is not already there, language which would permit the Federal Government to step in, in order to prevent the construction of powerplants from which there may result pollution, as a result of either their construction or their operation.
Mr. MUSKIE. Mr. President, it is my best judgment, and I so state to the Senator, that I think that we have written that kind of provision into the act, though there will be the inescapable time delay to which I have referred.
May I point out to the Senator that the provision of the bill I read applies to the construction or operation of plants that are subject to Federal license or Federal permit. There are other forms and other sources of thermal pollution, to which the Senator has addressed himself which are not subject to Federal permit or license.
Large industrial plants also discharge heated water into streams. There are coal- and oil-fired plants which do the same. Since those plants do not require Federal licenses or permits unless the construction is under the authority of the Corps of Army Engineers, there will be a great deal of thermal pollution in this country that will not be subject to the provisions of the act.
Mr. ELLENDER. Mr. President, why would it not be advisable to cover that phase of the problem?
Mr. MUSKIE. Mr. President, the States could, under their water standard setting authority, act in the matter. It is our hope that under this example set by the Federal Government they will act to cover other forms of thermal pollution within their borders.
I think we will have to keep putting pressure on.
I point out to the Senator, whose dedication I have learned to respect, that, sitting as he does on the Appropriations Committee, he is in perhaps a more effective position than I am to watch the implementation of the policy upon the nuclear powerplants.
I urge him to do so. I welcome enthusiastically his interest in this matter as I know of his influence.
We are trying to do our job on the legislation, but I welcome the interest of the Senator in it.
Mr. ELLENDER. Mr. President, I have set hearings for next week. Members of the AEC will be present to testify as to the plants already in existence.
Unless we are certain of the environmental effects of these nuclear plants, some day we may find that we have created a monster. Before the matter goes too far, I am very hopeful that we will be able to do something about it. I understand that the discharge in some areas is very bad and that it contaminates not only the water but also the air.
Mr. MUSKIE. The Senator is correct. As I think I told the Senator in conversation the other day, we had testimony in a hearing before our committee that as much as 50 percent of the flow of a river might be necessary to cool the discharge from one of these nuclear powerplants.
WATER QUALITY IMPROVEMENT ACT OF 1969
The Senate resumed the consideration of the bill (S. 7) to amend the Federal Water Pollution Control Act, as amended, and for other purposes.
Mr. CURTIS. Mr. President, I have an amendment at the desk, and I ask that it be read.
The PRESIDING OFFICER. The amendment will be stated.
The assistant legislative clerk read as follows:
On page 66, line 6, strike out the word "two" and insert "three"; and in line 7, strike out the word "two" and insert "three".
Mr. CURTIS. Mr. President, under section 16(c) (6) it is provided that for any facility being constructed under a Federal license on the date of enactment of S. 7, no certification under section 16(c) (1) is required for any Federal operating license necessary for such facilities, if such operating license is issued within 2 years following the date of enactment. The subsection further provides that after 2 years, the licensee must provide certification or see its operating license terminate.
This provision is directed principally at facilities licensed under the Atomic Energy Act and is designed to require those facilities to comply with applicable water quality standards particularly as they relate to thermal pollution. This objective is laudable and I support it. However, the 2-year period of time for facilities being constructed to revise their specifications is possibly too short. The installation of facilities necessary to achieve compliance with water quality standards involves millions of dollars and requires considerable time for design and construction. I, therefore, submit, and the basis of my amendment is, that the 2-year time period in order that facilities under the provisions of subsection 16 (c) (6) be given added time to achieve necessary compliance.
I think this amendment is necessary to avoid undue hardship while at the same time achieving compliance with water quality standards. The amendment would merely extend the time 1 year.
I urge the adoption of the amendment. It is my hope that the distinguished chairman of the committee, who is in charge of the bill, will see fit to accept it.
Mr. MUSKIE. Mr. President, I have discussed this amendment with the distinguished Senator from Nebraska and the distinguished Senator from Delaware (Mr. BOGGS). It does not in any way change the thrust of this provision of the bill or the principle underlying it. It is a question of allowing more time for plants that began their construction before the date of enactment of this bill to adjust to its requirements. I have no objection to the amendment.
Mr. CURTIS. I thank the distinguished Senator very much.
I ask for a vote.
The PRESIDING OFFICER. The question is on agreeing to the amendment of the Senator from Nebraska.
The amendment was agreed to.