March 24, 1970
Page 8983
Mr. MUSKIE. Mr. President, this conference report is the culmination of efforts begun in 1966 to strengthen and expand the Nation's capability to deal with oil pollution disasters.
Mr. President, this legislation would probably not be before the Senate today had there not been in recent weeks several disastrous oil spills. I think that the grounding of the tanker off Nova Scotia, the spill from the tanker in Tampa Bay, and the ongoing disaster off New Orleans have convinced all of us in both bodies of the need to attach a different concept of liability to the extremely hazardous business of oil transportation, production, and use.
The very nature of these incidents and the cloudy question of fault assisted in bringing about the compromise which was finally achieved between the House and Senate conferees on this issue,
The attached discussion of the conference substitute describes in detail what this bill does and what the conferees intended. While I do not intend to present all the provision in detail in this statement, I would like to point out several important features of the oil pollution section and emphasize the other more important features of the legislation itself.
Under the conference compromise, unless the owner or operator of a vessel, an offshore facility, or an onshore facility can prove that the discharge resulted solely from an act of God, an act of war, an act of U.S. Government negligence, or an act or omission of a third party such owner or operator will be absolutely liable to the United States for the costs of cleanup in an amount not to exceed $14 million for a vessel and $8 million for an onshore or offshore facility.
In the case of a vessel the liability is further limited to $100 per gross ton, an amount suggested by insurers as the insurable limit for this particular type of liability.
I am not satisfied that these figures completely reflect the potential liability of vessels in oil discharges. I am not satisfied that the insurers gave us the best available information. However, I am satisfied that we could get no better information and that the amounts set forth in this law would have been sufficient to clean up any oil spill on record.
I anticipate this figure will have to be revised, as will the outside limits, as the size of tankers increases and as the danger of oil spills increases. Nevertheless, at this time the gross tonnage and dollar limits should be adequate to cover a tanker twice as large as any vessel capable of using any port of the United States today.
More importantly, Mr. President, a review of these figures should be the kind of public policy consideration which precedes any increases in shipment of oil by sea either from foreign or domestic sources.
The hearings on this legislation have indicated that there is great room for improvement in the handling of oil in transport. There is still too much room for accidents.
I will introduce legislation to tighten the regulations governing the design and construction of vessels, the transportation of oil and other hazardous cargo, the training of crews, and the location of onshore and offshore facilities.
I also hope that we can develop a system for providing compensation for private damages resulting from oil spills.
For onshore and offshore facilities, the figure of $8 million was included in both the House and the Senate bills. Although there is no indication as to the accuracy of this figure, it is much more than the clean-up costs of any oil spills on record from onshore or offshore facilities. It too may have to be revised in the future.
This legislation does not affect the authority of the Secretary of the Interior regarding activities on the Outer Continental Shelf. It does not affect the regulations which provide absolute and unlimited liability oil operations on the OCS.
The penalties for failure to notify, for knowing discharge of oil, and for violation of regulations are as strict as either the House or Senate bill would permit.
Broad authority is given the President to determine by regulation what harmful quantities of oil cannot be discharged without violating the provisions of this act. The responsibility placed on the President is great. The urgency for his early action is evident.
Until the President develops at least preliminary regulations defining harmful quantities, parts of the law will be inoperative. At a minimum the President can and should immediately, by regulation, prohibit the discharge of oil which exceeds the amount normally anticipated in operation of a vessel, or onshore, or offshore facility.
Such regulations with appropriate definitions should be promulgated as soon after enactment of this legislation as possible.
The President should then set into motion the procedures necessary to determine in as exact a manner as possible the amounts and quantities of oil that can be discharged, under what circumstances, and what times, and what locations as required in this section. Further he should indicate, to the extent that it is possible, those areas of the coastal United States and the navigable waters of the United States where the discharge of oil is absolutely prohibited or partially prohibited.
Another important measure to assure tough enforcement of this act will be to provide adequate funds for improved Coast Guard surveillance activities along the coast of the United States. Tanker captains who deliberately disregard regulations and pump their bilges at will must be arrested and brought to trial for criminal discharges of oil. The Coast Guard also must be given funds to develop local and regional contingency plans and a strike force capacity to move against any oil pollution disaster strategically located in the United States.
Effective implementation of this legislation will require that adequate funds be devoted to developing new clean-up technology, to developing the specifications for chemicals which can be used to disperse oil as called for by the Kennedy amendment retained by the conferees, and to providing funds for the Federal Water Pollution Control Administration to study the effects of oil and dispersants on the aquatic environment.
I wish to emphasize for the Senate a provision of this legislation which has not received a great deal of attention. This provision may be the most important section of this legislation. I call the Senate's attention to section 21. This section requires that any applicant for a Federal license or permit obtain certification of reasonable assurance of compliance with water quality standards from a State before that applicant can receive any license or permit.
Any new industry that intends to locate on the navigable waters of the United States; that needs a permit to build a dock, a discharge pipe, a water-intake pipe, a bridge, or a road across Federal lands; that requires a license from the Atomic Energy Commission for a nuclear power plant or a license from the Federal Power Commission to build a dam will be required to obtain this certification of compliance with water quality standards.
No polluter will be able to hide behind a Federal license or permit as an excuse for a violation of water quality standards. No polluter will be able to make major investments in facilities under a Federal license or permit without providing assurance that the facility will comply with water quality standards. No State water pollution control agency will be confronted wtih a fait accompli by an industry that has built a plant without consideration of water quality requirements.
Mr. President, a question has been raised regarding the relationship between section 21 (b) of the conference agreement and the provisions of sections 102 and 103 of the National Environmental Policy Act, Public Law 91-190, particularly with regard to the duties of Federal licensing and permitting agencies under the respective authorizations.
It should be clear that nothing in subsection 21(b) should be interpreted as discharging Federal licensing or permitting agencies from complying with the provisions of Public Law 90-190 as far as they relate to any environmental impact not associated with water quality standards.
Mr. President, the conference agreement includes a number of other major provisions which are discussed in the summary of conference action which I ask unanimous consent to have printed in the RECORD at this point.
There being no objection, the summary was ordered to be printed in the RECORD, as follows:
SUMMARY OF CONFERENCE ACTION
The Senate-passed bill included four titles, the provisions of three of which are included in the conference agreement. Title III, which authorized acquisition of land for the use of the United States Senate, was deleted as no longer required.
Title I has been expanded to include several provisions of the House bill not in the Senate bill as well as a revised version of the Kennedy-Stevens amendment to provide Safe Water Facilities for Alaska. This "Alaska Village Demonstration Projects" provision which had been Title IV of S. 7 appears now as Section 20 of the Act.
House amendments not in the Senate bill which were adopted include provisions for manpower training, marine sanitation device research, change of the name of the Federal Water Pollution Control Administration to the Federal Water Quality Administration, a study of financing the cost of pollution control, and an award provision.
Title I of the conference agreement includes several provisions which were similar in both House and Senate bills. Those provisions are:
(a) Acid mine drainage research;
(b) Pollution control in the Great Lakes;
(c) Field laboratories land acquisition;
(d) Oil pollution removal research;
(e) Extension of the Section 5 and Section 6 basic act research authorization; and
(f) The Clean Lakes research section.
Also, Title I includes several features of the Senate bill which the House conferees accepted with minor modifications, including:
(a) The Scott amendment for pilot training programs to train sewage treatment plant operators;
(b) Senator Nelson's amendment to require development of scientific knowledge on the effects of pesticides on the environment for the purpose of developing water quality standards, and a study into methods to control the environmental release of pesticides;
(c) The Tydings-Javits amendment clarifying that re-allocated grant funds can be applied to projects eligible for reimbursement; and
(d) A requirement that the value and use of a waterway for navigation be considered in establishing water quality standards.
Title I includes a modified version of the Senate provision for identification and cleanup of hazardous substances. The provision authorizes the President to clean up, to the extent practicable, any discharges of designated hazardous substances and to report to the Congress, no later than November 1 of 1970, on the methods and measures far controlling the discharge of hazardous substances, procedures for enforcement against discharges (including imposition of penalties for discharge and failure to notify,) and methods to recover Federal clean-up costs.
Pending the completion of this study, designation of hazardous substances should proceed. This activity will be especially useful to the Congress when it considers any legislative recommendations which result from the study.
The provision for control of sewage from vessels was similar in both bills with a few major differences. The Senate accepted the House provision which requires a report to the Congress on the results of marine sanitation device research prior to the effective date of any marine sanitation device performance standards.
The conferees agreed to require Defense Department vessels to comply with performance standards promulgated pursuant to this section but authorized the Secretary of Defense to establish regulations and certifications to implement application of those standards to Defense Department vessels.
The conferees modified the Senate "Grandfather clause" for vessels with sanitation devices installed prior to the effective date of Federal standards. Under the conference agreement existing devices which comply with initial Federal standards shall be considered in compliance. Thus, for example, if the Secretary certifies a holding tank, only a vessel owner with a previously installed holding tank which meets the new Federal standards and regulations could continue to operate such a device and avoid added costs.
The conferees agreed that Federal standards and regulations should replace State standards and enforcement after the effective date of the Federal standards. Under the agreed-upon pre-emption provision no State could regulate the design, installation, manufacture or use of any Federally certified marine sanitation device on any vessel subject to the provisions of this Act. However, the conference agreement authorizes the Secretary to prohibit completely the discharge of any sewage, whether treated or not, from any vessel, whether or not a vessel is equipped with a certified device if the Secretary finds, after application of a State that a specific water area (such as a marina, public water intake site or swimming area) requires a total prohibition.
The performance standards should relate to the specific waste treatment problems associated with vessel discharges and should not be confused with the methods of evaluating performance of land-based treatment works.
Title I does not include the provision which authorized commercial banks to underwrite municipal water and sewer revenue bonds, a provision on which a majority of the House conferees insisted was not within the jurisdiction of the Public Works Committees. The Senate conferees, cognizant of the jurisdiction of the Committee on Banking and Currency, receded.
I have discussed those provisions of Title I relating to oil pollution and Federal licenses and permits. Mr. President, the emphasis on this latter part of Section 21 should not obscure the change in the basic Federal Water Pollution Control Act relating to control of pollution from direct Federal activities.
The conferees agreed to language which deletes the existing requirement that Federal facilities and activities comply with water quality standards "insofar as practicable and consistent with the interests of the United States and within any available appropriations."
Under the conference agreement, Federal agencies, in their activities including direct facilities operation, contracts, grants and leases shall "consistent with the paramount interests of the United States as determined by the President" insure water quality standards compliance. In carrying out the intent of the conference agreement the President will have to specifically justify any Federal decision which would lead to violation of water quality standards. No longer can Federal agencies justify non-compliance with standards on the basis of lack of funds or impracticability. Federal agency budgets must include pollution control cost; Federal contracts and leases must include provisions to insure water quality compliance.
Mr. President, I have discussed Title II of the legislation at length, during consideration of S. 7 on October 7 and 8, during discussion of Senator Jackson's National Environmental Policy Act prior to conference, and during discussion of the conference report on Senator Jackson's bill.
The conference agreement on this Title II provides for establishment of an Office of Environmental Quality in the Executive Office of the President with substantially the same authority as originally voted by the Senate.
At the insistence of the House conferees the language of Title II was reduced, though the Senate intent was not changed. I would like to discuss several specific changes which have been included in the conference agreement to clarify the relationship between the Office and the recently established Council on Environmental Quality.
First, the conferees agreed to make the Chairman of the Council the Director of the Office while retaining the Office of Deputy Director – the appointee to which is subject to senate confirmation.
The conference agreement includes a specific authorization to employ, in the Office, ten environmental specialists or other experts without regard to provision of law relating to appointment and payment in the competitive service.
This provision is essential if the Office is to have the staff capability to carry out its authorized functions and adequately assist Council and the President in environmental quality policy questions, preparation of the annual report and other assigned functions.
Finally the conference agreement provides that the Environmental Quality Report (required by P.L. 91-190) be referred to each standing committee of the Congress having jurisdiction over the subject matter included.
This provision was to have been a part of P.L. 91-190 but, due to questions raised in the conference on that legislation, was dropped. Inclusion in this bill should assure adequate oversight of environmental aspects of Federal activities by the Congressional committees with authority over Federal programs.
One matter of importance throughout the legislation is the meaning of the term "navigable waters of the United States."
The conference agreement does not define the term. Based on the history of consideration of this legislation it is obvious that its provisions and the extent of application should be construed broadly. It is intended that this term include all water bodies, such as lakes, streams, and rivers, regarded as public navigable waters in law which are navigable in fact. It is further intended that such waters shall be considered to be navigable in fact when they form, in their ordinary condition by themselves or by uniting with other waters or other systems of transportation, such as highways or railroads, a continuing highway over which commerce is or may be carried on with other states or with foreign countries in the customary means of trade and travel in which commerce is conducted today. In such cases, the commerce on such waters would have a substantial economic effect on interstate commerce.
Mr. MUSKIE. Mr. President, I ask unanimous consent to include in the RECORD at this point those portions of the statement of managers on the part of the House which discuss the conference substitute. The language of the statement of managers on the part of the House, in addition to remarks of the Senate conferees reflect the intent of the conference agreement. Further, I ask unanimous consent to include a carbon print which shows the changes in the existing Federal Water Pollution Control Act.
There being no objection the statements and the print were ordered to be printed in the RECORD, as follows:
PORTIONS OF STATEMENT OF MANAGERS ON THE PART OF HOUSE
CONTROL OF POLLUTION BY OIL
Section 102 of the conference substitute would add a new section 11 to the Federal Water Pollution Control Act. This proposed new section 11 deals solely with the control of pollution by oil.
Subsection (a) contains definitions. The definitions of "oil", "discharge", "vessel", "public vessel", "United States", "person and "contiguous zone" are essentially identical with those definitions in the House bill. The definition of the term "owner or operator" would provide in the case of a vessel that it is the person owning, operating, or chartering by demise, and in the case of an onshore or offshore facility, it is the person owning or operating such facility, and in the case of an abandoned offshore facility, it is the person who owned or operated the facility immediately prior to its abandonment.
As a result of this definition, if an offshore facility has been abandoned by its former owner, and thereafter discharges oil in violation of this section, such former owner would be responsible under the provisions of this act for such subsequent discharge. The definition of the term "remove" or "removal" has been clarified to include specifically public or private property, shorelines, and beaches. The definition of "onshore facility" means any facility (including motor vehicles and rolling stock) of any kind located in, on, or under any land within the United States other than submerged land. Thus, it is made clear that tank trucks and railroad tank cars are included in the definition as well as all other facilities such as storage tanks or refineries from which oil could be discharged into the waters in question. The definition would not include, however, facilities which are built upon any submerged lands in the United States.
The definition of "offshore facility" means any facility of any kind located in, on, or under any of the navigable waters of the United States other than a vessel or public vessel. This would include offshore drilling rigs as well as all other offshore facilities within the navigable waters of the United States which, in the case of the coastal waters would extend to the seaward boundaries of the States within the meaning of the Submerged Lands Act. The term "act of God" is defined to mean an act occasioned by an unanticipated grave natural disaster. This definition varies from that of the Senate definition and, under this definition, only those acts about which the owner could have had no foreknowledge, could have made no plans to avoid, or could not predict would be included. Thus, grave natural disasters which could not be anticipated in the design, location, or operation of the facility or vessel by reason of historic, geographic, or climatic circumstances or phenomena would be outside the scope of the owner's or operator's responsibility. The definition of the term "barrel" is established at 42 U.S. gallons at 60º F.
Paragraph (1) of subsection (b) is a declaration of policy by Congress that there ought not be discharges of oil into or upon the navigable waters, adjoining shorelines, or the waters of the contiguous zone.
Paragraph (2) of subsection (b) prohibits the discharge of oil in the navigable waters adjoining shorelines, or the waters of the contiguous zone, in harmful quantities determined by the President under paragraph (3) with two exceptions: (A) discharges into the waters of the contiguous zone where permitted under article IV of the International Convention for the Prevention of Pollution of the Sea by 0i1, 1954, as amended, and (B) where permitted in quantities at times and locations or under circumstances or conditions which the President by regulations determines not to harmful. The President's regulations are required to be consistent with maritime safety, marine navigation laws and regulations, and applicable water quality standards.
Paragraph (3) of subsection (b) requires the President, by regulations to be issued as soon as possible, to determine for the purposes of this section those quantities of oil the discharge of which will be harmful to the public health or welfare of the United States, including fish, shellfish, wildlife, and public and private property, shorelines, and beaches with the exception that, in the case of oil discharged in the contiguous zone, only those discharges which threaten the fishery resources of the zone or threaten to pollute or contribute to the pollution of the territory or territorial sea of the United States may be determined to be harmful.
Paragraph (4) requires anyone in charge of a vessel or of an onshore or offshore facility, as soon as he has knowledge of any discharge of oil from that vessel or facility in violation of this section, to immediately notify the appropriate U.S. agency. Failure to do so subjects such person to a fine of not more than $10,000 or imprisonment for not more than a year, or both. This notification, however, is not to be used against any such person in any criminal case other than one for perjury or giving a false statement.
Paragraph (5) of this subsection imposes a civil penalty on the owner or operator of a vessel or onshore or offshore facility from which oil is knowingly discharged in violation of this section. This penalty is not to exceed $10,000 and is not to be assessed unless the owner or operator charged has been given notice and opportunity for hearing. Each violation is a separate offense, and the civil penalty may be compromised by the Secretary. The Secretary of the Treasury is required to withhold clearance from port of any vessel the owner or operator of which is subject to the foregoing penalty. Clearance may be granted upon filing of a bond or other satisfactory surety.
Paragraph (1) of subsection (c) authorizes the President to act to remove or arrange for the removal of any oil discharged into the navigable waters, adjoining shorelines, or the waters of the contiguous zone. If he determines the removal will be properly done by the owner or operator of the vessel or facility from which the discharge occurs, he may permit them to do so. The conferees wish to make it clear that the basic responsibility for necessary cleaning up in these situations is placed upon the President. This is not to be construed to inhibit or prevent any owner or operator from undertaking whatever action is necessary to contain or remove an oil discharge.
Paragraph (2) of subsection (c) would require the President, within 60 days, to prepare and publish a National Contingency Plan for the removal of oil. The Plan shall provide for efficient, coordinated, and effective action to minimize damage from oil discharges, including containment, dispersal, and removal of oil. The Plan is to include (A) assignment of duties and responsibilities, (B) identification, procurement, maintenance, and storage of equipment and supplies, (C) establishment of a strike force and emergency task forces, (D) a system of surveillance and notice, (E) establishment of a national center to coordinate and direct operations, (F) procedures and techniques to be employed in identifying, containing, dispersing and removing oil, and (G) a schedule identifying dispersants and other chemicals that may be used in carrying out the plan, the waters in which they may be used, and quantities which may be safely used. In the case of a dispersant, chemical or waters not specifically identified in the schedule, the President or his delegate may on a case-by-case basis, identify the dispersant or chemicals which may be used, the waters in which they may be used, and the quantities which may safely be used. The plan may be revised from time to time. Once the plan is published, however, removal of oil and actions to minimize damage therefrom shall, to the greatest extent possible, be in accordance with the plan.
The President is given general authority by subsection (1) of this section to delegate his responsibilities under this section. It is the hope of the conferees that with respect to the provisions of subsection (c) (2) (C) and (D) such responsibilities will be delegated to the Coast Guard and with respect to subsection (c) (2) (G) such responsibilities will be delegated to the Secretary of the Interior.
Subsection (d) provides authority for the United States to remove, and if necessary, to destroy vessels in cases where they pose a substantial threat of a pollution hazard through the discharge of oil. This is almost identical to the equivalent provision in the House bill with the exception that in lieu of the House provision making the expense of removal a charge against the vessel, its cargo, and owner and permitting the sale thereof, there has been substituted a provision from the Senate amendment which states that the expense incurred under this subsection will be deemed to be a cost incurred by the United States in the removal of oil for the purposes of liability under subsection (f) of this section.
Subsection (e) authorizes the President when there is an imminent and substantial threat to the public health and welfare because of an actual or threatened discharge of oil from an onshore or offshore facility to require the U.S. attorney for the district where the threat occurs to secure such relief as may be necessary to abate the threat, and the district courts of the United States are given jurisdiction to grant such relief as the public interest and equity may require.
Subsection (f) establishes the liability of owners and operators of vessels and on or offshore facilities for cleanup costs. Paragraph (1) of subsection (f) provides that the owner or operator of a vessel from which oil is discharged in violation of subsection (b) (2) of this section shall be liable to the United States for actual costs incurred under subsection (c) for removal of that oil with a limit of liability of not to exceed $100 per gross ton of the vessel or $14 million, whichever is lesser. The owner or operator will have no liability if he can prove that such discharge was caused solely by (A) an act of God, (B) an act of war, (C) negligence on the part of the United States or (D) an act or omission of a third party whether or not negligent, or any combination of the foregoing clauses. Such owner or operator shall be liable without limitation if the United States can show that the discharge was the result of willful negligence or willful misconduct within the privity and knowledge of the owner. These removal costs are to be a maritime lien on the vessel recoverable in an action in rem against the vessel and in addition the United States may bring an action against the owner or operator for these costs. The inclusion of specific language relating to the maritime lien and actions against the owner or operator are for the purposes of clarification only.
Paragraph (2) of subsection (f) provides that the owner or operator of an onshore facility is liable for actual costs for removal of oil discharged from that facility in violation of subsection (b) (2) of this section in an amount not to exceed $8 million. If such owner or operator can prove such discharge was caused solely by (A) an act of God, (B) an act of war, (C) negligence on the part of the United States, or (D) an act or omission of the third party whether or not negligent or any combination thereof, then such owner or operator shall have no liability. If the United States can show the discharge was a result of willful negligence or misconduct within the privity and knowledge of the owner, then the owner is liable for the full cost without limitation. The United States is authorized to bring an action against the owner or operator in any court of competent jurisdiction to recover these costs. Additionally the Secretary is authorized by regulation, after he has consulted with the Secretary of Commerce and the Small Business Administration, to establish classifications of those onshore facilities having a total fixed storage capacity of a thousand barrels or less which he determines do not present a substantial risk and apply with respect to these classifications differing limits of liability which may be less than the $8 million limit established statutorily by this paragraph.
Paragraph (3) of subsection (f) provides that the owner or operator of an offshore facility from which oil is discharged in violation of subsection (b) (2) of this section shall be liable to the United States for removal costs in an amount not to exceed $8 million. If such owner or operator can prove that the discharge is caused solely by (A) an act of God, (B) an act of war, (C) negligence on the part of the United States, or (D) an act or omission of a third party whether or not negligent, or any combination thereof, then such owner or operator will have no liability. If the United States can show that the discharge was the result of willful negligence or misconduct within the privity and knowledge of the owner then he is liable for the full amount. The United States is authorized to bring an action against the owner or operator in a court of competent jurisdiction to recover these costs.
Subsection (g) of this section provides that in any case where an owner or operator of a vessel or of an onshore or offshore facility from which oil is discharged in violation of this section proves that the discharge is caused solely by an act or omission of a third party or solely by such act or omission in combination with an act of God, an act of war, or negligence on the part of the United States, then such third party shall be liable to the United States for the actual costs of removing the oil unless that third party can in turn prove that the discharge was caused solely by an act of God, an act of war, negligence on the part of the United States or the act or omission of another party or any combination thereof. If the third party is the owner or operator of a vessel which caused the discharge, then that third party's liability is limited to $100 per gross ton of such vessel or $14,000,000, whichever is the lesser. In any other case the liability of the third party is limited by that which would have been applicable to the owner or operator of the vessel or facility from which the discharge actually occurred if such owner or operator would have been liable. If the United States proves the discharge of oil was the result of willful negligence or misconduct within the privity and knowledge of the third party, then such third party shall be liable for the full amount of the removal costs. The United States is authorized to bring a suit in a court of competent jurisdiction to recover these removal costs.
Subsection (h) provides that the liability established by this section will not affect any rights which the owner or operator of the vessel or onshore or offshore facility may have against third parties whose acts in any way may have caused or contributed to the discharge of oil, or which the United States may have against any such party.
Paragraph (1) of subsection (i) authorizes an owner or operator from whose vessel or facility oil has been discharged and who voluntarily removes the oil in accordance with regulations to recover reasonable costs incurred in that removal in a suit against the United States in the court of claims if such owner or operator can prove that such discharge was caused solely by (A) an act of God, (B) an act of war, (C) negligence on the part of the United States, or (D) an act or omission of a third party without regard to its negligence, or any combination of the foregoing.
Paragraph (2) of subsection (1) provides that this subsection will not apply where liability is established by regulations adopted under authority of the Outer Continental Shelf Lands Act.
Paragraph (3) of subsection (i) authorizes the payment from the revolving fund established in subsection (k) of this section of any judgment entered against the United States under this subsection.
Paragraph (1) of subsection (j) requires the President, as soon as practicable and consistent with the national contingency plan, and maritime safety, and marine and navigation laws, to establish methods and procedures for removal of discharged oil, to establish criteria for the development and implementation of local and regional oil removal contingency plans, to establish procedures, methods, and requirements for equipment to prevent discharges of oil from vessels and onshore and offshore facilities, and regulations governing the inspection of vessels carrying oil as cargo, including inspecting such cargoes all for the purpose of reducing the likelihood of discharges of oil from such vessels. This language is in very general terms, and it is the understanding of all of the conferees that under this authority the President would be authorized by regulation to require vessels and facilities to carry on board or otherwise have available materials and equipment determined necessary to prevent and to clean up oil discharges.
Paragraph (2) of subsection (j) provides for a civil penalty of up to $5,000 for each violation of the regulations issued under this subsection. Authority is granted the President to compromise these penalties.
Subsection (k) authorizes the establishment of a revolving fund in the Treasury of not to exceed $35 million to carry out the provisions of subsections (c) (relating to the removal of oil which has been discharged), (i) (relating to costs payable by the United States for removal by volunteers), and (1) (relating to the administration of the section generally), as well as section 12 of this act (relating to the removal of hazardous polluting substances). Any other funds received by the United States under this section are to be deposited in this fund. Moneys in the fund are to be available until expended.
Subsection (l) is general authority to the President to delegate the administration of this section to the heads of those departments, agencies, and instrumentalities which he determines to be appropriate. Any department, agency, or instrumentality in which functions are vested is to avoid duplication of effort and to utilize personnel, services, and facilities of other departments, agencies, and instrumentalities wherever appropriate.
Subsection (m) provides that any person authorized by the President to enforce this section may, except as to public vessels, board and inspect vessels, arrest violators, and execute warrants or other process issued by an officer or court of competent jurisdiction. It is the hope of the conferees that the responsibility for this subsection will be vested in the Coast Guard.
Subsection (n) vests the district courts of the United States with jurisdiction for actions brought under this section other than those specifically authorized in the Court of Claims by subsection (i) (1). It further designates in the case of territories and possessions which of the district courts such actions shall be brought in.
Paragraph (1) of subsection (o) provides that nothing in this section will affect or modify the obligations of an owner or operator of a vessel or facility from which oil is discharged to any other person or agency under any provision of law for damages resulting from that discharge or the removal of that oil.
Paragraph (2) of subsection (o) disclaims any intention of preempting any State or political subdivision from imposing any requirement or liability with respect to the discharge of oil into waters in that State. Thus, any State would be free to provide requirements and penalties similar to those imposed by this section or additional requirements and penalties. These, however, would be separate and independent from those imposed by this section and would be enforced by the States through its courts.
Paragraph (3) of subsection (o) insures that nothing in this section is to be construed as affecting or modifying any other existing authority of any Federal department, agency, or instrumentality relative to onshore or offshore facilities under this Act, or any other provision of law, or to affect any State or local law not in conflict with this section.
Subsection (p) is essentially the same as the equivalent provisions of the House bill relating to the financial responsibility of vessels except that where the House bill required vessels over 100 gross registered tons to establish evidence of financial responsibility, this provision requires vessels over 300 gross tons to do so and the limits of liability are specified to be the same as those contained in subsection (f) (1), that is, $100 a gross ton or $14 million, whichever is lesser. Additionally, this provision spells out in paragraph (3) that claims for costs may be brought directly against the insurer providing the evidence of financial responsibility and in such case the insurer shall be entitled to all of the rights and defenses available to the owner or operator. It is the hope of the conferees that responsibility for administering paragraph (1) of this subsection will be vested in the Federal Maritime Commission. It is also the hope of the conferees that the marine insurance industry will modernize its coverage for protection of third parties without regard to the nature of the conduct of the insured.
Paragraph (4) of subsection (p) is essentially the same as the provisions of the House bill relating to a study of the need for other measures to provide financial responsibility and to limit liability an vessels and facilities subject to the provisions of this section. This report is to be submitted to Congress by January 1, 1971.
CONTROL OF HAZARDOUS POLLUTING SUBSTANCES
The conference substitute proposes to add a new section 12 to the Federal Water Pollution Control Act dealing with control of hazardous polluting substances. In general, this section is more nearly comparable to that proposed by the Senate amendment than to the House bill.
Section 12 (a) would be the same as section 13 (a) of the Senate amendment except that the President would be authorized to establish recommended methods and means for removing hazardous substances instead of establishing criteria therefor as provided in the Senate amendment.
Section 12 (b) would apply the Administrative Procedure Act provisions as now contained in title V (other than the form of administrative proceeding provided in section 553 (c) ) in lieu of the detailed administrative proceedings and judicial review contained in the comparable Senate provisions.
Section 12(c) is essentially the same as section 13(g) of the Senate amendment except that the criminal penalty for failure to notify has been removed. This section does not contain the civil penalty provided in section 13(i) of the Senate amendment.
This section does not contain the authorities granted the President with respect to enforcement contained in sections 13(k) and 13(l) of the Senate amendment.
Section 12(g), relating to reports, with minor changes is essentially the same as section 13(n) of the Senate amendment.
Section 12(h) is essentially the same as section 13(o) of the Senate amendment.
CONTROL OF SEWAGE FROM VESSELS
The proposed new section 13 of the Federal Water Pollution Control Act relates to control of sewage from vessels.
Section 13 (a) contains the same definitions as section 11 of the Senate amendment with the following changes:
(1) The term "public vessel" is defined to mean a vessel owned or bareboat chartered and operated by the United States, by a State or political subdivision thereof, or by a foreign nation, except when such vessel is engaged in commerce.
(2) The definition of "manufacturer" is the same as contained in the House bill. (3) The term "discharge" is defined as including, but not limited to, any spilling, leaking, pumping, pouring, emitting, emptying, or dumping.
(4) The term "marine sanitation device" is defined as also including any process to treat sewage.
Section 13 (b) (1) relating to the establishment of standards for marine sanitation devices is essentially the same as contained in the House bill. Language is included in the vessel pollution portion of the conference substitute for the purpose of assuring that unreasonable demands are not made on small recreational vessels, but that marine sanitation device performance standards would only be promulgated when our technology permits these standards to be practicable and reasonable, and the degree of treatment will be adequate. The exemption of vessels that do not have installed toilet facilities relieves a burden upon those vessel owners who otherwise could be driven out because of the lack of feasibility of installing toilet facilities and marine sanitation devices on certain types of vessels.
Section 13(b) (2) provides that any existing vessel equipped with a marine sanitation device on the date of promulgation of initial standards and regulations under this section which device is in compliance with such initial standards and regulations shall be deemed in compliance with this section until such time as the device is replaced or is found not to be in compliance with such initial standards and regulations.
Section 13 (c) (1) relating to the effective date of standards is the same as the House provision.
Section 13(c) (2) relating to differentiation and waiver is the same as the House provision with the exception that the Secretary of the department in which the Coast Guard is operating must consult with the Secretary of the Interior in distinguishing among classes, types, and sizes of vessels as well as between new and existing vessels; and, with respect to waiving applicability of standards and regulations as necessary or appropriate for such classes, types, or sizes, it is made clear that existing vessels equipped with marine sanitation devices on the date of promulgation of the initial standards required by this section are eligible for waiver of such standards.
Section 13 (d) relating to federally owned vessels is essentially the same as the comparable provision of the House bill.
Section 13 (e) relating to consultation with interested parties is the same as the provisions of the House bill.
Section 13 (f) provides that after the effective date of the initial standards and regulations promulgated under this section no State or political subdivision thereof shall adopt or enforce any statute or regulation of any such State or political subdivision with respect to the design, manufacture, or installation or use of any marine sanitation device on any vessel subject to the provisions of this section. Upon application by a State and, where the Secretary determines that any applicable water quality standards require such a prohibition, he shall by regulation completely prohibit the discharge from a vessel of any sewage whether treated or not into those waters of such State which are the subject of the application and to which such standards apply.
The conferees expect there to be a wide dissemination of information of any such prohibition.
Sections 13 (g) through (m) relating to prohibitions and their enforcement are essentially the same as the equivalent provisions in the House bill.
AREA ACID AND OTHER MINE WATER POLLUTION CONTROL DEMONSTRATIONS
The proposed new section 15 is the same as the equivalent provisions in both the House bill and the Senate amendment which are substantially identical.
POLLUTION CONTROL IN THE GREAT LAKES
The proposed new section 15 is the same as the equivalent provisions in both the House bill and the Senate amendment which are substantially identical.
TRAINING GRANTS AND CONTRACTS
Sections 16 through 19 of the conference substitute relating to training grants and contracts are essentially the same as the equivalent provisions contained in the House bill.
ALASKA VILLAGE FACILITIES
The conference substitute proposes to add a new section 20 to the Federal Water Pollution Control Act entitled "Alaska Village Demonstration Projects".
This section would authorize the Secretary, in agreement with the State of Alaska, to carry out demonstration projects for central community facilities for safe water and the elimination or control of water pollution in native villages of Alaska without these facilities. These projects are to include provisions for safe water supply systems, toilets, bathing and laundering facilities, sewage disposal facilities, and similar facilities of that type. In addition, educational and informational facilities and programs relating to health and hygiene are authorized as part of the demonstration projects. The purpose of these demonstration projects is to assist in developing preliminary plans for providing these types of facilities for all native villages in Alaska.
In carrying out this section, the Secretary is to cooperate with the Secretary of Health, Education, and Welfare in order to utilize personnel and facilities of that department to the extent appropriate.
A report to Congress not later than January 31, 1973, is required.
There is authorized to be appropriated not to exceed $1,000,000 to carry out this new section.
It is the understanding of the conferees that these demonstration projects will not extend to the construction of facilities other than those which are centrally located and usable on a community-wide basis. Facilities for individual dwellings are not authorized under this section.
COOPERATION BY FEDERAL AGENCIES IN THE CONTROL OF POLLUTION
Section 103 of the conference substitute redesignates existing section 11 of the Federal Water Pollution Control Act as section 21 and revises that section substantially as follows:
Section 21 (a) would require each Federal department, agency, and instrumentality (hereafter referred to as a "Federal agency") having jurisdiction over any real property or facility or engaged in any Federal public works activity to insure compliance with applicable water quality standards and the purposes of the Federal Water Pollution Control Act in the administration of that property, facility, or activity, to the extent consistent with the paramount interest of the United States as determined by the President. The jurisdiction of a Federal agency referred to in this provision includes operations of the agencies carried on by lease and by contract and therefore would subject these lease and contract operations to the requirements of this subsection. In his summary of the conference pursuant to section 10(d) (4) of the Act, the Secretary is required to include reference to any discharges alleged to contribute to pollution from any Federal property, facility, or activity and to send a copy of that summary to the head of the Federal agency having jurisdiction thereof. Notice of a hearing pursuant to section 10(f) of the Act involving any pollution alleged to be caused by any such discharges shall also be given the Federal agency having jurisdiction over the property, facility, or activity involved and the hearing board's findings and recommendations shall include references to such discharges to the extent they are contributing to the pollution.
Section 21(b) requires any applicant for a Federal license or permit to conduct any activity (this includes constructing or operating facilities) which may result in any discharge into navigable waters of the United States to provide the licensing or permitting agency with a certification from the State in which the discharge originates or will originate or a certification from the interstate water pollution control agency having jurisdiction over the navigable waters at the point where the discharge originates or will originate if such a certification is appropriate from such interstate agency rather than from the State of origin. This certification must state that there is reasonable assurance as determined by the certifying State or interstate agency that the activity proposed to be licensed or permitted will be conducted in a manner which will not violate applicable water quality standards. The State is required to provide public notice with respect to all applications received by it for certification and, to the extent that the State determines it appropriate, to establish procedures for holding public hearings with respect to specific applications. If these standards have been promulgated by the Secretary, or, if a State or interstate agency has no authority to make such a certification, then the certification must be obtained from the Secretary.
In order to insure that sheer inactivity by the State, interstate agency, or Secretary, as the case may be, will not frustrate the Federal application, a requirement, similar to that contained in the House bill is contained in the conference substitute that if within a reasonable period, which cannot exceed one year, after it has received a request to certify, the State, interstate agency, or Secretary, as this case may be, fails or refuses to act on the request for certification, then the certification requirement is waived. If a State refuses to give a certification, the courts of that State are the forum in which the applicant must challenge that refusal if the applicant wishes to do so. No Federal license or permit shall be granted unless this certification has first been obtained or there has been a waiver of the requirement as provided by this subsection. Denial of certification by a State, interstate agency, or the Secretary, as the case may be, results in a complete prohibition against the issuance of the Federal license or permit.
When a licensing or permitting agency receives an application and a certification, it must immediately notify the Secretary of the Interior thereof. Whenever such a discharge may affect the quality of the waters of any other State as determined by the Secretary, then the Secretary shall, within 30 days of the date he is notified of the application for the Federal license or permit, notify such other State, the licensing or permitting agency, and the applicant. If within 60 days thereafter the State so determined to be affected determines that the discharge will affect the quality of its waters so as to violate its water quality standards and within that 60-day period notifies the Secretary and the licensing or permitting agency of its objection to the issuance of the license or permit and requests a public hearing on its objection, such a public hearing shall be held by the licensing or permitting agency. At that hearing the Secretary of the Interior shall submit his evaluation and recommendations with respect to the objection to the licensing or permitting agency. Based upon the recommendations of the State, the Secretary, and any additional evidence presented at the hearing, the agency shall condition the license or permit so as to insure compliance with applicable water quality standards. If conditions cannot insure this compliance, the license or permit shall not be issued.
In the case where a Federal license or permit is required both as to the construction of a facility and its operation, the initial certification required for the construction license or permit shall fulfill the requirements of this subsection with respect to certification for a Federal license or permit to operate that facility unless the certifying State, interstate agency, or Secretary, as the case may be, after having been given notice of the application for an operating license or permit by the agency to whom the application is made notifies that agency within 60 days that there is no longer reasonable assurance of compliance with applicable water quality standards because of changes since the construction license or permit certification was issued in (1) the construction or operation of the facility, (2) the characteristics of the waters into which the discharge is to be made, or (3) the water quality standards applicable to those waters. This paragraph is made inapplicable if the applicant for the operating license or permit has not provided the certifying State, interstate agency, or Secretary, as the case may be, with notice of any proposed changes in the construction or operation of the facility which changes may result in violation of applicable water quality standards.
Before the initial operation of a federally licensed or permitted facility or activity with respect to which a certification has been obtained under this provision which facility or activity is not subject to a Federal operating license or permit, the licensee or permittee is required to provide an opportunity to the certifying State, agency, or Secretary, as the case may be, to review the manner of operation of the facility for the purpose of assuring that applicable water quality standards will not be violated. Upon notification by such certifying State, agency, or Secretary, as the case may be, that operation of this facility will violate applicable water quality standards, the Federal agency may, after public hearing suspend the license or permit until notification is received from the certifying State, agency, or Secretary, as the case may be, that there is reasonable assurance that the facility or activity will not violate applicable water quality standards. This right to review the manner of operation of a facility or activity is not to be construed as authority to the State, agency, or Secretary, as the case may be, to impose operational requirements with respect to that facility or activity.
If a judgment is entered under section 10(h) of the Act that a federally licensed or permitted facility or activity has been operated in violation of applicable water quality standards, then the Federal license or permit with respect to which a certification has been obtained under this provision may be suspended or revoked by the Federal agency issuing that license or permit.
No Federal agency is to be deemed to be an applicant for the purposes of this subsection. If the actual construction of a facility has been lawfully commenced before the date of enactment of the Water Quality Improvement Act of 1970, then no certification is to be required for a license or permit issued thereafter to operate such facility except that if such a license or permit is issued without this certification it shall terminate at the end of three years from the date of enactment of the Act of 1970 unless before such date a proper certification is submitted to the licensing or permitting agency and the person having that license or permit otherwise meets the requirements of this subsection.
Except as provided in the preceding paragraph, an applicant for a license or permit pending on the date of enactment of the Water Quality Improvement Act of 1970, which license or permit is issued within one year after that date, will not require certification for a one-year period following the date of issuance of the license or permit except that that license or permit will terminate at the end of one year unless before that expiration date the licensee or permittee submits a certification and otherwise meets the requirements of this subsection.
In the case of any activity which will affect water quality for which there are no applicable standards, no certification will be required. However, a Federal licensing or permitting agency, in such event, must impose, as a condition of any license or permit a requirement that the licensee or permittee shall comply with the purposes of the Act.
If a State in which a discharge originates or the Secretary notifies a Federal agency that its licensee or permittee has received notice of the adoption of water quality standards applicable to such activity and has failed to comply with the standards, the Federal agency must after a period of time, suspend license or permit until notice is received that there is reasonable assurance of compliance.
Nothing in this section is to be construed to limit the authority of any department cr agency pursuant to any other provision of law to require compliance with applicable water quality standards. The Secretary of the Interior is also directed to provide technical assistance to carry out the purposes of this Act.
This section will also authorize the Chief of Engineers to permit the use of spoil disposal areas under his jurisdiction by a Federal licensee or permittee to charge for that use with the moneys received to be deposited in miscellaneous receipts of the Treasury. In considering the "public interest" the Chief of Engineers should take into consideration the necessity to maintain non-Federal dock and berthing facilities which are essential to the functioning of the Federal navigation project. In determining the needs and utilization of spoil disposal areas under the jurisdiction of the Chief of Engineers, he should give appropriate consideration to the related requirements of the non-Federal dredging activities and should consider their needs for disposal on the same basis as those of the Federal Government. Where local interests donates land, or shares in the costs of construction of spoil disposal areas, local interest should be permitted reasonable use of the area, utilizing the same standards as set forth in the two preceding sentences, at a nominal charge.
AWARDS FOR EXCELLENCE
Section 104 of the conference substitute adds a new Subsection (f) to redesignated section 22 of the Federal Water Pollution Control Act to authorize a program of official recognition by the United States to industrial organizations and political subdivisions which during the preceding year demonstrated either outstanding technological achievement or an innovative process, method, or device in their waste treatment and pollution abatement programs. The Secretary is to establish appropriate regulations for application for and granting of this award. No applicant is to be eligible if he is not in total compliance with all applicable water quality standards and does not otherwise have a satisfactory record with respect to environmental quality. The award is to be a certificate or plaque of suitable design, and notification of the award is to be published in the Federal Register.
RESEARCH, INVESTIGATIONS, TRAINING AND INFORMATION
Section 105 of the conference substitute amends section 5 of the Federal Water Pollution Control Act as follows:
(1) By relettering the last two subsections and inserting after subsection (f) new subsections (g) through (l).
(2) The new subsection (g) provides the same authority with respect to training of personnel as was provided by the Senate amendment in its amendment to section 5(g)
The new subsection (h) provides for the same authority with respect to lake eutrophication as was contained in the Senate amendment. It would authorize financial assistance for the construction of publicly owned research facilities by public agencies, including publicly owned universities.
The new subsection (i), relating to research on oil removal problems with the substitution of the requirement that the specifications be developed from time to time rather than by June 30, 1970, and with other minor changes is the same as the Senate amendment in this regard.
The new subsection (j), relating to marine sanitation device research is essentially the same as the provisions contained in the proposed subsection (j) in the House bill.
The new subsection (k), relating to land acquisition, is essentially the same as the comparable provisions in both the House bill and Senate amendment.
The new subsection (l) is essentially the same as the proposed subsection (j) in the Senate amendment relating to pesticides with the exception that reference to criteria has been deleted, and the term "scientific knowledge" substituted therefor, and the requirement of making the study on pesticides has been placed in the President rather than the Secretary. The conferees expect that the Secretary will consult with the Secretary of HEW on the health aspects of pesticides and will avoid duplication of the research activities of the Department of HEW.
In addition, this provision would extend through fiscal year 1971 the $1,000,000 authorized for the estuarine studies authorized in redesignated subsection (m) and would extend through fiscal year 1971 the authorization of $65,000,000 per year for carrying out section 5 on research and would authorize for subsection (g) (1) training $5,000,000 for fiscal year 1970 and $7,500,000 for fiscal year 1971, and $2,500,000 per fiscal year for each of those two fiscal years for carrying out subsection (g) (2) training. The extension of the estuarinn authorization is necessary in connection with the gathering of additional information which may be required as the result of hearings now being held by the Public Works Committee.
FINANCING STUDY
Section 109 of the conference substitute authorizes this study, excluding from it, however, the methods already authorized by existing law and extending to December 31, 1970, the reporting date. The authorization of this study is not to be construed as a weakening of the congressional commitment to the financing methods for water pollution control programs now authorized by law.
NAME CHANGE
Section 10 of the conference substitute provides for changing the name of the Federal Water Pollution Control Administration to that of the Federal Water Quality Administration.
REIMBURSEMENT
Section 111 of the conference substitute amends section 8(c) of the Federal Water Pollution Control Act to include for the purpose of making reimbursement, those States having projects eligible for reimbursement pursuant to the sixth and seventh sentences of subsection (c) of section 8.
The conferees agreed that this is merely a clarifying amendment and the authority for these reimbursements is contained in existing law. However, for clarification purposes, the specific words are added to the law.
NAVIGATION
Section 112 of the conference substitute adds a new sentence to section 10(c) (3) of the Federal Water Pollution Control Act. The intent and purpose of this sentence is the same as that of the Senate amendment, that is to ensure that "navigation" will be considered in the same manner and to the same extent as the other enumerated classes in the establishment of standards. The conference substitute differs from the Senate amendment only in technique in order to avoid any possible misinterpretation of this provision.
ENVIRONMENTAL QUALITY
Title II of the conference substitute relates to environmental quality.
Section 201 cites the title as the "Environmental Quality Improvement Act of 1970".
Section 202 makes certain congressional findings relating to the national policy set forth in existing statutes relating to environmental pollution, control, water, and land resources, transportation, and economic and regional development. It also finds that the primary responsibility for implementing this national policy rests with the State and local governments, and encourages the implementation of the policy through regional organizations.
The section declares that the purposes of the title are to assure that existing Federal departments and agencies conducting or supporting public works activities affecting the environment shall implement the policies established under existing law and to authorize an Office of Environmental Quality.
Section 203 establishes in the Executive Office of the President an Office of Environmental Quality. The Chairman of the Council on Environmental Quality is to be the Director of this Office. A Deputy Director is authorized to be appointed by the President by and with the advice and consent of the Senate, and his compensation is provided for. The Director is authorized to employ necessary personnel. These personnel would be employed in accordance with the general classification laws and paid in accordance with the General Schedule, except that authority is granted for the employment of not to exceed ten specialists and experts without regard to the provisions of law governing appointment and payment in the competitive service, with the further condition that no such specialist or expert shall be paid at a rate above that of the maximum for GS-18. The conferees expect a report to the Public Works Committees from the Council on Environmental Quality within 90 days after the date of enactment of this Act on their staff needs, in terms of numbers, grades, and functions of temporary and permanent staff personnel.
In carrying out his functions, the Director shall assist and advise the President on policies and programs of the Federal Government affecting environmental quality by
(1) providing the professional and administrative staff and support for the Council on Environmental Quality;
(2) assisting the Federal agencies and departments in appraising the effectiveness of existing and proposed facilities, programs, policies, and activities of the Federal Government which affect environmental quality as well as those specific major projects designated by the President which do not require individual project authorization by Congress and which affect environmental quality;
(3) reviewing the adequacy of existing systems for monitoring and predicting environmental changes in order to achieve effective coverage and efficient use of research facilities and other resources;
(4) promoting the advancement of scientific knowledge of the effects of actions and technology on the environment and encourage the development of the means to prevent or reduce adverse effects that endanger the health and well-being of man;
(5) assisting in coordinating among the Federal departments and agencies those programs and activities which affect, protect, and improve environmental quality;
(6) assisting the Federal departments and agencies in the development and interrelationship of environmental quality criteria and standards established through the Federal Government;
(7) collecting, collating, analyzing, and interpreting data and information on environmental quality, ecological research and evaluation.
The Director in carrying out his functions is authorized to contract with public or private agencies, institutions, and organizations and individuals.
Section 204 provides for referral of the Environmental Quality Report to each standing committee of Congress having jurisdiction over any part of its subject matter.
Section 204 authorizes $500,000 for fiscal year 1970, $750,000 for fiscal year 1971, $1,250,000 for fiscal year 1972, and $1,500,000 for fiscal year 1973, in addition to the existing authorizations.