November 2, 1971
Page 38853
Mr. ELLENDER. Mr. President, I send an amendment to the desk and ask for its immediate consideration.
The PRESIDING OFFICER. The amendment will be stated.
The assistant legislative clerk read as follows:
At page 161, between lines 7 and 8 add new section:
"SEC. 404. (a) The Secretary of the Army may issue permits, after notice and opportunity for public hearing, for the discharge of dredged materials into the navigable waters at specified disposal sites.
(b) In identifying disposal sites for the purposes of subsection (a), the Secretary shall apply the criteria established pursuant to subsection (c) (1) of section 403 together with an evaluation of the impact of such sites on navigation and anchorage. In applying such criteria, the Secretary in cooperation with the Administrator, shall determine those sites which would not adversely affect shellfish beds, fisheries (including, spawning and breeding areas) or recreation areas."
Mr. ELLENDER. Mr. President, I ask for the yeas and nays.
The yeas and nays were ordered.
Mr. ELLENDER. Mr. President, this is a very simple amendment, and should not take long to explain.
It simply retains the authority of the Secretary of the Army to issue permits for the disposal of dredged materials. This is essential since the Secretary of the Army is responsible for maintaining and improving the navigable waters of the United States.
One of the main deficiencies of this bill is that it treats dredged materials the same as industrial waste, sewage, sludge, or refuse introduced into a river system, lake estuary or ocean. The disposal of dredged material does not involve the introduction of new pollutants; it merely moves the material from one location to another. If polluted discharges from municipal and industrial sources are controlled as required by this bill, the disposal of dredged material in open water presents no significant problem.
There is no competent evidence to show that there is any increase in pollution or permanent effect on the marine environment in and adjacent to open water disposal areas resulting from typical dredged materials. Studies conducted by the Government show that there is no measurable effect.
The River and Harbor Act of 1970 authorized the construction of diked disposal areas for those Great Lakes harbors which are heavily polluted, and authorized a study of the characteristics of dredged spoil, and alternate methods of its disposal, including the effect of such disposal on water quality. The Public Works Appropriation Act for fiscal year 1972 included $30 million to initiate construction of the diked disposal areas for some thirty Great Lakes harbors. The authorized study of the characteristics of the spoil material has not been completed, and it would be unreasonable to place unjustified restrictions on the disposal of such materials.
The bill under consideration extends the authority of the corps to construct similar diked disposal areas in other parts of the country where found necessary.
The amendment which I propose requires that the Secretary of the Army apply the criteria established pursuant to subsection (c) of section 403, together with an evaluation of the impact of such sites on navigation and anchorage. It further requires that, in applying such criteria, the Secretary in cooperation with the Administrator shall determine those sites which would not adversely affect shellfish beds, fisheries – including spawning and breeding areas – or recreation areas.
The principal difference is that the permit authority remains with the Secretary of the Army who has the responsibility for maintaining and improving the navigable waters of the United States rather than placing this responsibility on the Administrator. As I have just pointed out, the Secretary must follow the same criteria as the Administrator. The bill, as reported, would in effect give the Environmental Protection Agency a veto power over the spoil disposal areas required for construction and maintenance of all navigation projects. The Secretary of the Army will not be obligated to require strict compliance with the effluent requirements established by the Environmental Protection Agency in issuing permits. The strict adherence to the published standards would result in 90 percent of the ports and harbors of the United States being closed, until such time as land disposal areas are provided. This would create a catastrophical situation with respect to our foreign and domestic commerce.
Perhaps the most significant effect of applying standards for the discharge of effluents as it relates to moving spoil material from one place in the waterway to another, without the interjection of new pollutants, is the effect these arbitrary and unsupported standards will have on the benefit-to-cost ratio of navigation projects.
We all recognize the need to protect our environment, but it is also necessary that we maintain a healthy economy. This is inherent in the declaration of policy in the Environmental Protection Act of 1970 which states:
The Congress . . . declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.
For these reasons, I urge support of my amendment.
As I have said, the only authority granted here is to give the Secretary of the Army the right to make these determinations, but using the same criteria as provided for in the bill.
UNANIMOUS-CONSENT AGREEMENT
Mr. BYRD of West Virginia: Mr. President, will the Senator yield for a unanimous-consent request?
Mr. MUSKIE. I yield.
Mr. BYRD of West Virginia. Mr. President, I have now consulted with the assistant Republican leader, and in the interest of saving time, I ask unanimous consent that the time allotted on each of the remaining rollcall votes be 15 minutes, instead of 20 minutes, and that the warning bell sound at the end of the first 10 minutes on each rollcall.
The PRESIDING OFFICER (Mr. WILLIAMS). Without objection, it is so ordered.
Mr. MUSKIE. Mr. President, one of the most difficult challenges that has faced the Subcommittee on Air and Water Pollution for the past 8 to 10 years has been an effective way of making the Federal Government comply with environmental requirements in the same way that the Federal Government asks citizens to comply. At every turn we have taken, we have found an excuse as to why the Federal Government should have a lesser or different standard of performance or compliance from that of a private citizen. This has been true of defense installations, of dredging, and of many other activities. There is always a reason why the Federal Government should not do what is required of other citizens.
Title IV, which is involved in Senator ELLENDER's amendment, is addressed to this problem.
Section 401, the certification section, is the applicable section. What this section does is this: This section, largely taken from present law, requires that any applicant for a Federal license or permit provide the licensing agency with a certification from the State in which the discharge occurs that any such discharge will comply with sections 301 and 302, which are the environmental control sections.
Is that an unreasonable requirement? All we ask is that activities that threaten to pollute the environment be subjected to the examination of the environmental improvement agency of the State for an evaluation and a recommendation before the Federal license or permit be granted.
What Senator ELLENDER's amendment would do would be to exempt dredging. There is no question that the Secretary of the Army should retain authority to permit dredging operations for the purpose of navigable water and channel maintenance. It is a mission-oriented agency, and this is its mission. We do not undertake to turn that mission over to anybody else, and that specific activity should not be interfered with by the Environmental Protection Agency.
But, conversely, spoil disposal should be subject to EPA regulations. Spoil disposal is a pollutant. Any person who wished to dump polluted dredge spoil into navigable waters would be required, under this section, to get a permit from EPA or the State, just as would be required of other discharges.
The question of spoil disposal is one of cause, as is the question of pollution control in general. There is no question that the technology of alternative disposal of dredge spoil exists. The land disposal techniques advocated in title II as a result of the Corps of Engineers studies are available for disposition of dredge spoil.
So, what section 401 would require is that the pollution potential of the proposed dredge spoil be evaluated by EPA and that the environmental impact of disposing of dredge spoil in particular locations or sites, as recommended by the Corps of Engineers, be evaluated by EPA. If we eliminate those two checks by the only agency we have to evaluate environmental damage and make dredgers exempt, as no one else is under this bill, from this kind of monitoring and supervision, it means releasing them from all control.
The Corps of Engineers, a mission-oriented agency, is not equipped to evaluate the environmental impact of these dredging activities. It is equipped to form judgments on what is needed for navigation. This bill does not take that judgment-making authority from it. The amendment would shift the environmental evaluation authority from EPA to the Corps of Engineers, and the committee is against it. The committee considered this and rejected it. The committee position is "no," and I urge the Senate to vote "no" on this amendment.
Mr. STENNIS. Mr. President, will the Senator yield for a question?
Mr. MUSKIE. I yield.
Mr. STENNIS. Mr. President, as I understand the Senator from Louisiana, all he proposes by his amendment is to treat with dredge material, which has a very definite meaning, as I understand it; and his statement says that studies conducted by the Government show that there is no measurable effect by what are really dredge materials with reference to pollution. This would have to meet the same requirement, anyway, under his amendment, any project, as is set up for the standards to be used by environmental agencies. Is that not correct?
Mr. MUSKIE. No, not as I read it. Let me read the amendment:
The Secretary of the Army may issue permits after notice and opportunity for public hearing, for the discharge of dredged materials into the navigable waters at specified disposal sites.
That is the Secretary of the Army. That is not the administrator of the EPA. So that is different.
In identifying disposal sites for the purpose of subsection (a), the Secretary–
Not the administrator of EPA, but the Secretary–
Shall apply the criteria established pursuant to subsection (c) (1) of section 403 ... In other words, the Secretary shall make the environmental judgments that under the bill are entrusted to the Administrator of EPA.
Mr. STENNIS. But they are the same standards that are being applied under the Senator's amendment and the bill.
Mr. MUSKIE. May I say to the Senator – and I will expand on the point – that we have found – and the hearings of our committee are replete with the evidence – that mission-oriented agencies whose mission is something other than concern for the environment simply do not adequately protect environmental values. That is not their mission. They would do a disservice to their mission if they would try to act as environmental protectors. The mission of the Corps of Engineers is to protect navigation. Its mission is not to protect the environment.
Mr. STENNIS. In the beginning, the Senator used the words "making excuses."
Mr. MUSKIE. No – exemptions.
Mr. STENNIS. I do not think there is anything about agencies making excuses for not doing this or that.
I found the Corps of Engineers to be as competent and capable an agency of the Government as I have ever run into and the job they do is excellent, truly outstanding. I am now chairman of the subcommittee that handles the public works appropriation bill, and I have been on the committee for 20 years, and thus I come in contact with the work of the corps nationwide. I know, if I am any judge of men – and I know them personally – that they are going all the way in doing the best they can under this new law. They are in sympathy with it. This amendment excepts this dredging. It does not touch the pollutants the Senator mentions, the pollutants, sludge, refuse, and so forth–
Mr. MUSKIE. Those pollutants are found in areas that are dredged. They form the bottom of the sludge. The Senator says the agencies are in sympathy with this legislation. They are, but they do not want to be under it. They do not want it to apply to them.
Mr. STENNIS. We authorized $30 million this year for a Great Lakes project where they have all these pollutants; it is to provide dikes to control the pollutants. This is a program handled by the Engineers.
Mr. MUSKIE. I do not understand. Will the Senator please tell me why, of all the misoriented agencies subject to the 40 percent – this includes the AEC and every other agency – why the Corps of Engineers only with respect to dredging should not be subject to what we are requiring of every other agency?
Mr. STENNIS. In order to get their job done. This project has got to stand by and wait and wait and wait for the application. The new Agency has not been in operation very long. I do not charge them with wrongdoing but they need time to develop. The Senator from Louisiana (Mr. ELLENDER) has now returned to the Chamber and I am willing to yield to him, but something must be done. This is a real problem as to how far we are going in stopping all the many hundreds of projects that are in progress already or beginning to make progress. If we stop progress on the ports and harbors all over this country for a while, stop working on improving them, the economy will stagnate.
Mr. MUSKIE. Will the Senator refer me to that provision in the bill that stops these activities–
Mr. STENNIS. That is the practical effect of it.
Mr. MUSKIE. Will the Senator expand on that for me, as to what the practical effect will be?
Mr. STENNIS. Here is an illustration right here, this dike project for the Great Lakes, a project which impressed our subcommittee very much on which, unless there can be some "go" sign given, at least on a temporary basis, until the adjustments can be made and the matter can be clarified, will be stopped and we will be stopping them all over the country – absolutely.
Mr. MUSKIE. May I say to the Senator that if the Senator means what he has just been saying, then he should vote against the bill, because what we are talking about is subjecting every activity in the private and public sector in the kind of place he is insisting for this dredging, whether we are talking about papermills, chemical mills, oil refineries, cotton mills, textile mills – they are all subject to this kind of scrutiny, and every other Federal activity is. So I can understand if the Senator says it goes too far and he will vote against the bill. Why he should advocate this kind of control over every other activity in the public and private sector simply for the exemption of dredging, is beyond me.
Mr. STENNIS. I submit that I advocate a reasonable basis. I think, as a practical matter, that it is a necessary one. I appreciate all the fine work the Senator has done on this bill, but indignation is not enough just to get a bill passed
Mr. MUSKIE. No, and it is not enough to support an amendment, either.
Mr. STENNIS. We have got to have reasonable environmental protection and at the same time operate the economy of this country.
I thank the Senator very much for yielding to me.
Mr. ELLENDER. Mr. President, I suggest the absence of a quorum.
Mr. MATHIAS. Mr. President, will the Senator from Maine yield so that I may ask him one or two questions on this subject?
Mr. MUSKIE. I am happy to yield to the Senator from Maryland.
Mr. MATHIAS. Section 209 (b) (2) (C) (ii) on page 63 requires an areawide waste treatment plan to provide for the establishment of a program "to regulate the location, modification, and construction of any facilities ... which may result in any discharge of pollutants." Would the certification procedures of section 401 or the permits of section 402 represent a sufficient program to regulate the location or construction of any facilities or would further procedures be required.
Mr. MUSKIE. It is intended that the requirements under section 209 will not necessarily be satisfied by compliance with section 401 and section 402. Sections 401 and 402 provide for controls over discharge. Section 209 anticipates controls over the location of facilities to comply with an overall plan for protection of the Nation's water. Section 209 is prevention oriented, not control oriented.
Mr. MATHIAS. Does Section 301 (b) (2) (A) on page 76 contemplate that a State, or the Administrator if appropriate, might be able to set the 1981 effluent limitations almost on an individual point source by point source basis?
Mr. MUSKIE. Section 301 (b) (2) (A) as well as section 301 (b) (1) anticipate individual application of controls on point sources through the procedures under the permit program established under section 402.
Mr. MATHIAS. Section 304(a) (1) on page 79 requires the Administrator to develop criteria on the dispersal of pollutants.
Does this mean that he will develop criteria on the so-called mixing zones for pollutants or areas of heat dispersal for thermal discharges from steam electric generating plants?
Should a State take these criteria on dispersal of pollutants into account in setting effluent limitations?
Mr. MUSKIE. The answer is: Dispersal for purposes of 304 (a) (1) does not mean mixing zones or areas of heat dispersal. It means the mechanisms or pathways by which pollutants move through aquatic systems. The pathway of DDT through the foodchains to higher levels of animal life is an example of what is meant by dispersal under section 304(a) (1).
Criteria under section 304(a) are to be applied in determining quality of water, not in setting effluent limitation. The information under section 304(b) is to be applied in setting effluent limitations.
Mr. MATHIAS. The Administrator has been trying to require all new steam electric powerplants adjacent to Lake Michigan to build cooling towers for condensing water being returned to the lake. Would this no discharge of a pollutant provision mean that every powerplant to be built anywhere in the United States in the future would have to have a cooling tower?
Would it be permissible, under the provisions of this legislation, for steam electric generating plants to have recognized as the best available technology the use of: cooling ponds; cooling lakes; cooling canals or lagoons; spray ponds; damming a stream or creek to create a privately owned cooling lake; and once through cooling and discharge into the Gulf of Mexico, the Atlantic Ocean, or the Pacific Ocean?
Mr. MUSKIE. The establishment of control technology under the bill provides flexibility in application of various technological responses to meet a particular problem. In the case of power generating facilities, it is the discharges from towers, ponds, lakes, and so forth, that the committee is concerned with, not the technology.
Mr. MATHI S. Section 106 (h) (3) on page 30 provides that EPA shall not make any grant to assist a State in carrying out programs to prevent or eliminate water pollution unless the State has a procedure for preconstruction review of the location of all new sources. Can the States assume that the certification procedure of section 401 or the permit program of section 402 are to be construed as being sufficient procedure to meet the requirement of this section 106(h) (3)?
Mr. MUSKIE. A properly drawn permit program under section 402 could meet the requirements of section 106 (h) (3).
Mr. MATHIAS. I thank the distinguished Senator from Maine for this helpful colloquy.
The PRESIDING OFFICER (Mr. WILLIAMS). Who yields time?
Mr. ELLENDER. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. On whose time?
Mr. MUSKIE. Mr. President, I suggest that the time for the quorum be taken out of no one's time.
The PRESIDING OFFICER. Without objection, the clerk will call the roll.
The legislative 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. BYRD of West Virginia. Mr. President, may we have order?
The PRESIDING OFFICER. The Senate will be in order. Senators will be seated.
Mr. MUSKIE. Mr. President, I would like to report to the Senate that I think the quorum call time was used fruitfully, and I do not really intend a pun.
Mr. President, I would like to offer a substitute for the Ellender amendment. I will read the amendment and then send it to the desk. The amendment reads as follows–
On page 159, between lines 14 and 15, add a new subsection, as follows:
(m) Any application for a permit under this section for the discharge of dredged spoil into the navigable waters (other than in confined disposal sites) shall be accompanied by a certificate from the Secretary of the Army that the area chosen for disposal is the only reasonably available alternative and, unless the Administrator finds that the matter to be disposed of will adversely affect municipal water supplies, shellfish beds, wildlife, fisheries (including spawning and breeding areas) or recreation areas, such permit shall issue.
Mr. President, I send the amendment to the desk as a substitute. This language has been worked out with agreement among those involved in the debate, and those on the other side of the issue who are concerned about the activity to be permitted or the environmental protections to be advanced.
The PRESIDING OFFICER. The time of the Senator from Maine has expired. Does the Senator from Louisiana yield back his time?
The Parliamentarian advises the Chair that before the substitute amendment is in order, all time must be yielded back.
Mr. MUSKIE. I yield back my time.
Mr. ELLENDER. I yield back my time.
Mr. PASTORE. May I ask a question before all time is yielded back?
Mr. MUSKIE. We are yielding back time in order to get more time on the substitute.
Mr. PASTORE. Very well. As long as I can ask my question.
The PRESIDING OFFICER. All time on the amendment is yielded back.
Mr. MUSKIE. Mr. President, I ask unanimous consent that the reading of the substitute amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered. And, without objection, the amendment will be printed in the RECORD.
The amendment ordered to be printed in the RECORD is as follows:
On page 159, between lines 14 and 15, add a new subsection, as follows:
"(m) Any application for a permit under this section for the discharge of dredged spoil into the navigable waters (other than in confined disposal sites) shall be accompanied by a certificate from the Secretary of the Army that the area chosen for disposal is the only reasonably available alternative and, unless the Administrator finds that the matter to be disposed of will adversely affect municipal water supplies, shellfish beds, wildlife, fisheries (including spawning and breeding areas) or recreation areas, such permit shall issue."
Mr. PASTORE. Mr. President, I notice there is a certificate to be given by the Secretary of the Army subject to some activity by the Administrator. Do we mean the Administrator of the EPA?
Mr. MUSKIE. Yes.
Mr. PASTORE. Does not the Senator think there should be some limitation of time? It could run up the cost if this matter is dilly-dallied.
Mr. MUSKIE. There is in the basic title.
Mr. PASTORE. This is an exception; it is being treated as an exception, is it not?
Mr. MUSKIE. Let me state what I think the language means. First, it retains the permit issuing authority in the EPA.
Mr. PASTORE. Right.
Mr. MUSKIE. That is the principal point. Second, it specifies the particular environmental risks that we conceived of as being incurred by the disposal of spoil. So in a sense, by being more specific rather than general it should expedite the process. Finally, it retains authority for the Secretary of the Army to make the judgments he should as to the economic feasibility or other feasibility in selecting the site.
Mr. PASTORE. Mr. President, may we have the amendment carefully read again?
The PRESIDING OFFICER. Will the Senator from Maine read the amendment?
Mr. STENNIS. Mr. President, may we have order?
The PRESIDING OFFICER. The Senate will be in order.
Mr. MUSKIE. Mr. President, the substitute amendment reads as follows:
On page 159, between lines 14 and 15, add a new subsection, as follows:
"(m) Any application for a permit under this section for the discharge of dredged spoil into the navigable waters (other than in confined disposal sites) shall be accompanied by a certificate from the Secretary of the Army that the area chosen for disposal is the only reasonably available alternative and, unless the Administrator finds that the matter to be disposed of will adversely affect municipal water supplies, shellfish beds, wildlife, fisheries (including spawning and breeding areas) or recreation areas, such permit shall issue."
Mr. PASTORE. Does that same rule apply with reference to all other procedures?
Mr. MUSKIE. My answer would be yes, but I want to be sure from the technical point of view that I am correct. Basically, yes.
Mr. PASTORE. So that I will make myself clear, we authorize these projects by the Corps of Army Engineers. Many times we found if they are denied the costs automatically go up, and many times in local communities there is tremendous pressure that this be done, like dredging a harbor.
If it is left up to the EPA, which is only interested in the environment, without regard to the economic reasons, and it is left up to him to exercise discretion as he sees fit, at his own convenience, we may run up against a proposition where we have to increase the appropriation the next time we meet.
It strikes me that once the application is made with this certificate there should be an obligation on the part of the EPA to act in a reasonable period of time. I do not care if it is 2 weeks, 1 month, or 6 months, but there should be a time within which to act. Possibly it could be put in there that within a certain date he make such a determination.
Mr. MUSKIE. If we put that in, it would be a different procedure. This language states "such permit shall issue." It is a mandatory requirement.
Mr. PASTORE. But it states unless the Administrator finds thus and thus. Would he be given a year to find it out, 2 years, or 30 days to find it out?
Mr. STENNIS. A reasonable time.
Mr. MUSKIE. I do not know of any limitations that apply to the Secretary of the Army in putting those projects together. I remember, as Governor of my State, that I was interested in dredging harbors, and I did not find the Corps of Engineers the fastest agency on earth in meeting requirements. If time limitations are going to be applied, let them also be applied to the Corps of Engineers.
Mr. PASTORE. I have not been brought up to hate the Army Corps of Engineers. I think they do a good job. They are serving the public interest according to our authorizations and appropriations. They do not act on their own. They act by the mandate of Congress. I do not care if the Senator puts it in or not. I am just raising the question.
SEVERAL SENATORS. Vote! Vote! Vote!
Mr. MUSKIE. This substitute is offered on behalf of myself and the Senator from West Virginia (Mr. RANDOLPH) as chairman of the full committee, the Senator from Kentucky (Mr. COOPER), the ranking Republican member, the Senator from Delaware (Mr. BOGGS), who is the ranking Republican member of the subcommittee, and it has the consent of the introducer of the original amendment.
The PRESIDING OFFICER. Does the Senator from Delaware yield back the remainder of his time?
Mr. BOGGS. I yield back my time.
The PRESIDING OFFICER. All time is yielded back. The question is on agreeing to the amendment.
The amendment was agreed to.
The PRESIDING OFFICER. The question is on agreeing to the amendment as amended.
Mr. BYRD of West Virginia. Mr. President, I ask unanimous consent that the order for the yeas and nays be vacated.
The PRESIDING OFFICER. Without objection, it is so ordered.
The question is on agreeing to the amendment as amended.
The amendment, as amended, was agreed to.