October 17, 1972
Page 36774
THE PRESIDENT PLAYS GAMES WITH WATER BILL
Mr. MUSKIE. Mr. President, 13 days have now passed since the House and the Senate overwhelmingly approved the Federal Water Pollution Control Act Amendments of 1972 (S. 2770) and sent the legislation to the President.
The White House has followed the progress of this legislation carefully. The issues presented by the bill do not require 13 days of study. In my floor remarks when the conference report on S. 2770 was considered, I urged that the President give the bill prompt attention and forgo the temptation of a pocket veto. One week ago I wrote to the President and further outlined for him the consequences of a pocket veto for the water pollution program and the personnel on the Federal and State levels. In that letter, I pointed out that:
The only possible result of a pocket veto will be the termination of the program and the loss of thousands of jobs.
Since then, Administrator William Ruckelshaus of the Environmental Protection Agency has written a strong, 33-page letter to the OMB making many of the same points made in my letter and urging that the bill be signed.
The President has not responded to my letter nor to the Administrator's plea that the bill be signed. The legislation continues to sit on his desk as he plays a game of "chicken" with the Senate and the House – clearly hoping for a chance to quietly exercise a pocket veto.
I hope, Mr. President, that the Congress will remain in session long enough – until midnight tonight – to deny him that chance. In any event, I promise the President that there will be no quiet veto of this legislation – pocket or otherwise. Too much is at stake to let such an action go unnoticed.
So that Members of the Senate and the House will have access to the advice that the President has received from Mr. Ruckelshaus and myself in the event that we must respond to a Presidential veto, I ask unanimous consent that the letters to which I have referred be printed in the RECORD.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
COMMITTEE ON PUBLIC WORKS,
Washington, D.C.,
Oct. 10, 1972.
The PRESIDENT,
The White House,
Washington, D.C.
DEAR Mr. PRESIDENT: On October 4, the House of Representatives passed the Federal Water Pollution Control Act Amendments by a vote of 366 to 11. Later that day, the Senate concurred with the House on a unanimous vote of 74 to 0, and the bill was sent to the White House for your action.
As Chairman of the Subcommittee on Air and Water Pollution, I cannot urge strongly enough that you sign this bill. In my view it represents a significant legislative accomplishment: the combination of what the Senate and House Conferees felt were the best features of the Administration's proposals, the Senate bill and the House bill.
I have been aware for some time of your concern that the level of funding authorized by S. 2770 would be unacceptably high, and I would like to make two points with respect to that concern:
First, in an effort to meet that objection, the Senate and House Conferees accepted an amendment offered by Congressman Harsha, which would give the Executive significant flexibility by providing that funds authorized to be obligated need not be committed.
And second, controlling water pollution will be expensive, but the cost of the program ought to be compared with the cost of non-action. The Third Annual Report of your Council on Environmental Quality stated:
"The costs of effectively controlling pollution are well within the capacity of the American economy to absorb, although there will be some transitional problems. Our Nation's quest for environmental quality can be attained without sacrificing a healthy, dynamic economy. Failure to act would cost the Nation dearly in health impairment, loss of recreational resources, and a decline in the quality of life."
In all significant respects, I think that this bill meets your call for tough, new laws, and that it merits your signature.
Prior to the Senate's final action on the legislation, reports had circulated that there was a strong possibility that this bill would be vetoed. Prompted by these reports, I expressed the hope during Senate debate that you would not use a pocket veto to ignore the action of Congress. I urged that you recognize that "a Congressional statement of public policy as clear and as definite as our action today deserves an affirmative response one way or the other."
Because several members of the Administration, including Mr. Ehrlichman of your staff, have privately and publicly indicated that a veto remains imminent, I would like to take this opportunity to expand on the statement I made on October 4 concerning the dangers of a pocket veto.
As you know, the Environmental Protection Agency is currently operating certain aspects of the water pollution control program through residual funds available from past appropriations. If the prerogative of a pocket veto is exercised, Congress will have no opportunity to respond – either by overriding a veto or by sustaining the veto and enacting continuing authority for the water pollution control program. If Congress were to sustain a veto, it would have both the responsibility and the authority to provide for interim continuation of the program. Since the program cannot be continued by Presidential action, however, the only possible result of a pocket veto will be the termination of the program.
I do not have to point out to you the consequences of termination for the water pollution control program itself. As I stated in the Senate, a pocket veto will mean that "before Congress can act again, more lakes and streams will die, more rivers and bays will drown in human and industrial wastes, and more precious time will be lost in a battle where time is running out on our future."
Equally serious, however, are the consequences of termination for the men and women who work in these programs. In an August 2 letter to the Committee, EPA Administrator William D. Ruckelshaus stated that "termination will require the furloughing of nearly 1200 people throughout the country who are currently associated with the conduct of these activities....
Obviously this action not only would have a devastating effect on the programs, but would also create a serious economic and morale problem for the people involved. We cannot overemphasize the critical importance of the need for the Congress to enact authority for us to continue these programs."
In a July 25 letter to the Committee, Governor Mandel of Maryland, Chairman of the National Governors' Conference, and Governor Preston Smith of Texas, Chairman of the Conference Committee on Natural Resources and Environmental Management, told us:
“Without legal assurance of continuity of the Federal program, the States must discontinue the employment of great numbers of employees whose salaries depend upon the grants that provide the Federal share of the jointly funded program. Many key personnel who have responsibilities for monitoring, surveillance, analytical work, laboratories, and other important areas will be lost to the water pollution control effort. With the loss of these key personnel essential activities must be restricted or even eliminated in some States."
"In many States there is no legal authority to finance the payment of salaries from State funds based on a hope, or belief, that Federal funds will sooner or later be forthcoming. In addition, the uncertainty of retroactive pay would encourage employees to seek employment elsewhere.
Replacement of these valued and experienced employees, when Federal funds do become available, would be extremely difficult. We do not believe the Nation can or should tolerate such a severe disruption in the continuity of its protection of the water environment."
Mr. President, I do not believe that the men and women whose valuable talents have meant so much to progress in water pollution control on the Federal, State and local levels should be held hostage while debate continues over the future shape and scope of the Federal effort. Since only Congress can provide the means to continue their work, either by insisting that S. 2770 become law, or by sustaining a veto and fulfilling its responsibility to enact continuing authority, I urge that you act one way or the other on this legislation before the end of this week so that Congress will have an opportunity to respond.
Sincerely,
EDMUND S. MUSKIE, U.S. Senator.
LETTER FROM WILLIAM RUCKELSHAUS, ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION ADMINISTRATION, TO THE OFFICE OF MANAGEMENT AND BUDGET, OCTOBER 11, 1972, RECOMMENDING PRESIDENTIAL APPROVAL OF S. 2770, THE FEDERAL WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972
The essential provisions of each Title of the bill are set out below:
TITLE I – RESEARCH AND RELATED PROGRAMS
1. Goals and Policy. – A national goal to eliminate the discharge of pollutants by 1985 is announced. An interim goal – the attainment of water quality to support fish and wildlife and recreation by 1983 – is also provided.
2. The law would be changed to provide that EPA determine the need for and the value of water storage in Federal Water resource projects for purposes of water quality control.
3. No hydroelectric projects can include storage for the purpose of water quality control unless the Administrator certifies the need. (This is a new provision.)
4. The old section 3(c), Basin Planning Projects, and Federal support are retained.
5. There is a requirement that a national water quality surveillance system monitoring the quality of navigable water, the contiguous zone and ocean be established. EPA is to utilize the resources of NASA, NOAA, USGS, and the Coast Guard in designing such a system.
6. Research on tools and techniques for making cost-benefit studies of activities subject to regulation under the Act shall be conducted and reported to the Congress.
7. The enrolled bill requires that EPA construct the National Marine Water Quality Laboratory.
8. Research and demonstrations on vessel waste systems have been transferred from EPA to the Coast Guard.
9. A waste oil disposal and utilization study is required with a report to the Congress within 18 months.
10. Annual reports will be required on research activities devoted toward developing methods and systems for reducing the total flow of sewage.
Grants for research and development
1. Grants are provided for demonstration river programs.
2. Grants are authorized to assist in the development of waste management methods directed toward no discharge of pollutants and toward new and improved testing methods.
State program grants
State program grants authority under existing law is substantially revised.
1. Authorization are increased to $60 million in Fiscal Year 1973 and $75 million in Fiscal Year 1974.
2. Allocations of grant monies are to be made in accordance with the extent of the pollution problem of the various States.
3. States must not reduce expenditures on pollution control programs below those for Fiscal Year 1971.
4. Beginning with Fiscal Year 1974, State grants will be contingent upon State monitoring programs complying with Section 305 and State authority to act in emergency situations as provided in Section 304.
Great Lakes Corps participation
The legislation directs the Corps to design a waste water management program to rehabilitate Lake Erie. EPA will cooperate with the Corps in such a design. Detailed engineering design of such program is contingent upon further legislative approval of the Congress.
Lake Tahoe study
EPA, in conjunction with other governmental agencies, is to conduct a study of appropriate Federal and State interest in the Lake Tahoe region and to provide to the Congress within one year a legislative program in that regard.
In-place toxic pollutants
EPA, in conjunction with the Corps, is authorized to remove and dispose of in-place toxic pollutants in harbors and navigable waters. $15 million is authorized for such activity.
TITLE II – GRANTS FOR CONSTRUCTION AND TREATMENT WORKS
1. $18 billion of contract grant authority is provided for Fiscal Years 1973, 1974, and 1975 for new projects.
2. $250 million is authorized to be appropriated for Fiscal Year 1972 (funds appropriated but heretofore unauthorized) for grants to be made in accordance with Section 8 of the Act as it existed prior to the enactment of the 1972 Amendments.
3. $2 billion is authorized to be appropriated for the purpose of reimbursements at 50% or 55% level for projects constructed during the period 1966 to 1972.
4. $750 million is authorized to be appropriated for reimbursement at the 30% level for projects constructed during the period 1956 to 1966.
5. The Federal share for new projects constructed with Fiscal Year 1972 funds (grant authority) and Fiscal Year 1973, Fiscal Year 1974, and Fiscal Year 1975 funds (contract grant authority) shall be 75%. There is no percentage requirement for State or community matching funds.
6. A minimum of secondary treatment would be required for all new projects, the construction of which is commenced after enactment but prior to June 1974. Thereafter, best practicable control technology must be employed.
7. Allocation shall be made in accordance with the Cost of Clean Water survey of needs (incorporated by reference as a published House document). Allocation for Fiscal Year 1975 shall be in accordance with a new needs survey and a subsequent legislative enactment.
8. User charges will be applied to all users of a publicly-owned facility for operation and maintenance. An additional charge will be applied to industrial users for the capital cost. The community may retain an amount equal to the non-Federal share of the cost of construction and an additional amount determined in accordance with regulations for the expansion and reconstruction of the project. Any remainder is to be returned to the Treasury.
9. Before projects are approved, other requirements must be met which include: certification against excessive infiltration of the sewer system, pre-treatment, compliance with regional plans or areawide plans under Section 208.
10. Eligibility as far as the type of construction works for which funds may be provided now includes storm and combined sewers, collection sewers, and recycled water supply facilities. Storm and combined sewer projects shall be the subject of guidelines promulgated by the Administrator with respect to eligibility.
11. Areawide waste treatment management plans must be developed for designated areas, taking into account all municipal and industrial point and non-point sources, background deposits, and potential future pollution sources, so as to devise a phased comprehensive address to water pollution control in such areas. A State-wide plan embracing all of the States not designated for areawide planning shall be the subject of a State-wide plan. Approximately three years after enactment, plans must be submitted for Federal approval along with a designation of the management agency to carry out the plan. After such plan and management agency have been approved, all grants for such area must be in accordance with the approved plan and payable to the management agency.
TITLE III – STANDARDS AND ENFORCEMENT
1. Effluent limitations
The Administrator would be directed, within one year after the date of enactment, to identify in guidelines the best practicable control technology for industrial categories, taking into account processes involved, age of equipment, and cost, considered on a national, industry-wide basis. In addition, the Administrator would be obliged to identify best available control technology and technology which would achieve the elimination of the discharge of pollutants. Again, the Administrator would be directed to take into account differing industrial processes, age of the equipment, and cost, considered on a national basis. Industrial discharges would be obliged to achieve as a minimum best practicable control technology in accordance with the guidelines by July 1, 1977. New sources of discharge would be obliged to employ the best available control technology in accordance with the guidelines. During the second phase, all industrial dischargers would be obliged to achieve best available control technology not later than July 1, 1983. The 1985 goal of no discharge of pollutants is not legally required under this legislation.
2. Water quality standards
Existing water quality standards for interstate waters are preserved and extended to intra-state waters during the first year after enactment. The existing mechanism for State establishment, Federal review and promulgation, and review of water quality standards, is continued, provided that the periodic revision of such standards necessary to meet the requirements of this enrolled bill shall be limited to use designations and criteria. Insofar as the application of best practicable control technology or best available control technology can be determined to be insufficient to meet water quality standards targets, additional controls sufficient to meet such targets must be employed.
Each State, for all the waters within that State, shall establish the maximum daily load of pollutants permitted for those waters so as not to impair propagation of fish and wildlife. Similar analysis and assessment for thermal discharges are also required.
In addition to technology control guidelines, information with respect to water quality criteria, integrity factors and methods and procedures for control of non-point source pollution will be required.
3. Water quality inventory
On January 1, 1974, EPA will provide to the Congress an inventory of all point sources of discharge (including quantitative and qualitative analyses of such) and will also identify existing water quality, and provide an assessment of that water quality which presently satisfies the 1983 water quality goals, which will satisfy those goals in 1977 or 1983 or which will not meet such goals by 1983.
4. State inventories
The States, beginning in 1975, will submit annual reports to the Congress and EPA, similar in content to those which EPA is obliged to submit in 1974, with the additional requirement that the States propose and identify costs for programs for non-point source control.
5. New source performance standards.
Within one year after the date of enactment, EPA is required to promulgate effluent standards for new sources, including, but not limited to, 28 identified categories. These effluent limitations guidelines must identify best available control technology which would be required of all new sources, including no discharge of pollutants where practicable.
6. Toxic and pre-treatment effluent standards.
The Administrator would be directed to publish a list of toxic pollutants and effluent limitations for such pollutants, including, where appropriate, absolute prohibition of the discharge of such toxic pollutants. Additionally, pre-treatment standards will be published requiring any industry discharging into a municipal plant to pre-treat its effluent so that it does not interfere with the operation of the plant or pass through the plant without adequate treatment.
7. Entry and inspection
EPA has an unrestricted right of entry as well as authority to inspect records and data, monitoring equipment, and sample effluents. Upon approval by the Administrator, the States may assume EPA's authority in this area.
8. Federal enforcement
Federal enforcement is provided whereby the Administrator may enforce permit conditions and other requirements of the Act through the issuance of administrative orders, which are judicially enforceable, or, in the alternative, may proceed directly through judicial enforcement. Civil and criminal penalties are provided, with a maximum of $50,000 and two years' imprisonment for repeated violators.
9. Oil and hazardous substances liability
The existing law with respect to pollution from oil discharges is generally continued. Similar provisions of regulation and enforcement and the imposition of financial liability are extended to hazardous substances as well.
10. Marine sanitation devices
The provisions with respect to marine sanitation devices in existing law are generally continued, except that States may impose absolute prohibition of discharge from vessels in the event States determine that greater environmental protection is needed and that adequate facilities exist to receive these wastes.
11. Federal facilities
The law would be changed to require Federal facilities to comply with all Federal, State, interstate, and local requirements respecting water pollution control. The President may exempt facilities where he determines it is in the paramount interest of the United States. No exemptions are permitted with respect to toxic substances, pre-treatment requirements, and new source performance requirements.
12. Clean lakes
A clean lakes program, whereby States must submit to the Administrator an identification of eutrophic condition of lakes, processes to combat or retard such eutrophication, and methods to restore the quality of such lakes, is provided. $300 million is provided over a three-year period for such purposes.
13. National study commission
A National Study Commission composed of 15 members (5 appointed by the President, 5 appointed by the Senate, and 5 appointed by the House) shall be required to investigate the technological effects of achieving, and the economic, social, and environmental effects of achieving or not achieving, the 1983 goal. The report of such study together with recommendations shall be submitted to the Congress three years after enactment.
14. Thermal discharges
Thermal discharges shall be subject to the same requirements of best practicable control technology and best available control technology, except where the discharger can demonstrate to the satisfaction of the Administrator that a proposed effluent limitation based upon best practicable control technology and best available control technology is more stringent than necessary to protect fish and shellfish, etc., in which event a less stringent effluent limitation may apply. Cooling water intake structures will require best available control technology.
TITLE IV – PERMITS AND LICENSES
1. A State certification mechanism like that now provided by Section 21 of the Federal Water Pollution Control Act is in the enrolled bill, provided that in place of water quality standards as the determinative criteria, the effluent limitations, guidelines and other requirements of the new law are substituted.
2. No discharge of any pollutant will be permitted, except as authorized by a permit issued under the new Act. No Refuse Act permit may be issued after enactment of the legislation. However, Refuse Act permits heretofore issued shall continue in force and effect as though issued under authority of this enrolled bill.
3. States may be authorized to continue existing permit programs for the purpose of issuing permits under this bill from the date of enactment for up to 150 days after enactment. Such State-issued permits are subject to Federal veto.
4. EPA will issue guidelines identifying an adequate State program. EPA in its permit program must conform to these guidelines. After State assumption of a permit issuing authority, EPA will retain the right, unless waived, to review and approve any permit which affects another State, or any proposed permit, to determine adherence to requirements under the enrolled bill. EPA, after notice and public hearing, may withdraw State permit-issuing authority in the event it determines State failure to adequately implement the requirements of the enrolled bill.
5. When application for a permit has been made, but no final disposition with respect to such application is made prior to December 31, 1974, prosecutions with respect to the discharge which is the subject of such permit application may not be commenced.
6. The Administrator is required to promulgate within 180 days after enactment criteria with respect to ocean waters. These criteria addressing the effect of pollutants on marine ecosystems, etc., parallel the criteria in the ocean dumping legislation now pending. Permits for discharge into the territorial sea, the contiguous zone or ocean waters must be in accord with these criteria.
7. The Corps shall continue to issue dredge and fill permits in accordance with criteria comparable to the EPA ocean discharge criteria. EPA may restrict the discharge of dredge material in specified sites if the Administrator determines that such discharge will have an unacceptable adverse effect on municipal water supplies, fishery resources or recreational areas.
8. Additional criteria and a potential additional permit would be required for the disposal of sewage sludge into the navigable waters, notwithstanding the fact that a permit for such dumping may have been obtained pursuant to the ocean dumping Act.
TITLE V – GENERAL PROVISIONS
1. The enrolled bill provides that the Administrator may seek injunctive relief to restrain any discharge that presents an imminent and substantial danger to public health and welfare (the latter limited to effect on livelihood).
2. Standing to sue is provided citizens or groups to enforce non-discretionary actions of the Administrator or to enforce effluent standards or limitations or orders of the Administrator. Such standing is limited to persons having an interest which is or may be adversely affected. Such suits may not be maintained prior to the rendering of 60-day notice to the alleged violator, the Administrator, and the State concerned or in the event that the Administrator or a State is diligently prosecuting such violation.
3. The Attorney General shall represent the Administrator in all litigation unless the Attorney General fails to take appropriate action within a reasonable time, in which event the Administrator may be represented by his own attorneys.
4. Provisions are made in the law to protect employees who have cooperated in the enforcement and implementation of the enrolled bill.
5. Judicial review of Administrator's action in promulgating standards, determining new source performance standards, effluent limitations, prohibitions, etc., or in issuing or denying any permit may be obtained by interested persons in the U.S. Court of Appeals for the appropriate Circuit.
6. Nothing in the enrolled bill shall preclude (except with respect to the regulation of sewage from vessels) States from adopting and enforcing more stringent requirements.
7. Other affected authority:
(a) The authority under Section 10 of the River and Harbor Act of 1899 with respect to navigation is preserved. The consultative requirements of the Fish and Wildlife Coordination Act of 1934 appear to be preserved (this Act is not mentioned).
(b) Except with respect to permits for new sources and grants for municipal waste treatment construction no action under the enrolled bill will be deemed a major Federal action for the purposes of NEPA (Environmental Impact Statements.).
(c) A State certification under Section 401 or a permit under Section 402 shall be determinative of water quality considerations for purposes of Federal licenses, except that licenses or permits other than those issued under this enrolled bill nevertheless may require an Environmental Impact Statement.
8. An Effluent Standards and Water Quality Information Advisory Committee must review proposed effluent limitations, new source performance standards, and toxic standards, and make recommendations to the Agency on such proposed standards and limitations.
9. Annual reports to the Congress with respect to every major component of the program are required within ninety days of the convening of each session. A detailed estimate of costs must be submitted to the Congress every second year.
10. No suit or other litigation or other proceeding shall be affected by the enactment of this enrolled bill. All rules, regulations, orders, determinations, etc., or other actions pertaining to any functions, powers, requirements, duties in effect prior to the date of enactment of the enrolled bill continue in effect until modified or repealed in accordance with the new Act.
11. The Act prior to its Amendments in 1972 shall govern grants authorized for Fiscal Year 1972, except as otherwise specifically provided, i.e., 75% Federal share.
12. GAO is to report to the Congress by October 1, 1973, on the efficacy of the R. & D. programs relating to control technology and water pollution.
13. Congress urges that the United States enter into international agreements to apply uniform standards and limitations regarding water pollution. Commerce, in conjunction with EPA, will conduct studies on the effects on trade of differing effluent limitations as imposed by the United States and by other countries.
14. $800 million in authorizations is provided to assist small business concerns to meet the water pollution control requirements established under the enrolled bill. This would be accomplished by an amendment to the Small Business Act and administered by the Small Business Administration.
15. The Administration's proposed Environmental Financing Authority is included in the enrolled bill.
16. Sex discrimination is prohibited.
We strongly recommend that the bill be signed by the President.
When the President forwarded his proposals for water pollution control legislation to the 92nd Congress, he advised the Congress in his environmental message with respect to water pollution control as follows:
"We have the technology now to deal with most forms of water pollution. We must make sure that it is used.
"In my February 1970 special message to the Congress on the Environment, I discussed our most important needs in the effort to control water pollution: adequate funds to ensure construction of municipal waste treatment facilities needed to meet water quality standards; more explicit standards, applicable to all navigable waters; more effective Federal enforcement authority to back-up State efforts; and funds to help States build the necessary capability to participate in this joint endeavor."
To a very large extent, S. 2770 reflects the recommendations of the President. The bill also reflects many of the recommendations that Chairman Train, Chairman McCracken, and I made on behalf of the Administration in our testimony presented to the Congress.
The thrust of the Administration's recommendations to the Congress was essentially this:
Federal, State, and local programs to abate water pollution are not achieving their purpose; the nation is losing an irreplaceable natural resource to ever increasing pollution and degradation; the existing Federal law is inadequate and must be revised to provide for:
(a) the establishment of effluent limitations for industrial categories nation-wide;
(b) the requirement that industries employ the best practicable control technology to deal with industrial effluents, and the requirement that the best available control technology be employed by new industrial sources of discharge;
(c) the necessity to consider costs in establishing regulatory controls;
(d) the extension of water quality standards to all navigable waters;
(e) the strengthening and streamlining of Federal enforcement procedures;
(f) the establishment of a national, Federal-State system of permits to regulate industrial and municipal effluents;
(g) the expansion and reform of the municipal waste treatment facilities grant program, premised on intergovernmental cooperation and funding of needed facilities and the achievement of municipal self-sufficiency in this area.
The enrolled bill reflects the Administration's proposals and recommendations in the following major provisions:
1. Goals
The bill establishes as a "national goal" the elimination of the discharge of pollutants by 1985. This goal is understood to be a target, not a legally binding requirement. In the context of the bill, the 1985 goal is best understood as an objective to be achieved insofar as technology permits, taking into account the costs of applying such technology.
This change from the earlier Senate version of the bill is a major accommodation to the recommendations made by the Administrator in testimony before the House Public Works Committee .
2.15-Man Commission Study
Before the more stringent requirements of phase 2 were imposed, a comprehensive study of the desirability and feasibility of the phase 2 requirements and the 1985 goal would be accomplished by a 15-man commission (five members appointed by the President, five members appointed by the Senate, and five members appointed by the House). On the basis of this study, the Administrator would make recommendations to the Congress respecting phase 2 requirements and the 1985 goal. However, Congress would need to take further legislative action to change either phase 2 requirements or the 1985 goal. The Administration strongly recommended that a study such as this be conducted so that any necessary mid-course correction could be accomplished.
3. Phasing of regulatory requirements
The first phase of regulation would embrace the period from enactment through 1977. During this phase, best practicable control technology would be required; during the second phase, the period from 1977 through 1983, more stringent requirements, i.e., best available control technology, would be required. The Administration agreed with the requirement of best practicable control technology for phase one, but questioned whether this could be achieved by 1976 as the bill originally provided. As to the phase 2 requirements, we will have the benefit of the 15-man commission study and recommendation.
4. Effluent limitations
The key element in the Administration's proposal for this legislation was the concept of effluent limitations, as distinguished from simply pursuing water quality standards objectives. The Conference bill fully incorporates as its central regulatory point the Administration's proposal concerning effluent limitations in terms of industrial categories and groups ultimately applicable to individual dischargers through a permit system.
5. Costs
The Administration urged the Congress that in requiring stringent controls for industrial dischargers and in approaching the elimination of pollutants goal, we must not lose sight of the costs involved. The enrolled bill fully reflects the Administration's concern in that the Administrator is directed to consider "the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application" in determining best practicable control technology .
Similarly, in determining best available control technology for th phase 2 requirements, the Administrator directed to take into account "the cost of achieving such effluent reduction."
Further, in establishing new source performance standards, the Administrator is directed "take into consideration the cost of achieving such effluent reduction."
6. Water quality standards
The Administration recommended that notwithstanding the introduction of effluent limitations into the regulatory scheme, water quality standards be retained for interstate waters and expanded to intra-state waters. The enrolled bill fully accommodates this Administration recommendation. Water quality standard objectives would continue to be applicable along with the new effluent limitations in the regulatory scheme.
7. New source performance standards
The enrolled bill provides that new sources of discharge be required to employ best available control technology. This is fully consistent with the Administration's proposal with regard to new sources.
8. Enforcement
The Administration recommended that the enforcement machinery of the current law be superseded by streamlined administrative and legal mechanisms whereby discharges could be compelled to meet permit and effluent limitation requirements through speedy administrative or judicial enforcement actions. The Administration also recommended that non-complying dischargers be subject to penalties. The enrolled bill fully accommodates that recommendation in providing for enforcement through administrative orders, court orders and injunctions, and provides for civil and criminal penalties.
9. Toxic control
The enrolled bill would require the Administrator to identify toxic substances which would be regulated pursuant to the permit program, including, where appropriate, absolute prohibitions. This is fully consistent with the Administration's own proposal in this regard.
10. Pretreatment requirements
Industrial dischargers into municipal systems will be required by the enrolled bill to adequately pretreat industrial effluents prior to discharge into community systems so as to assure that such effluents will not pass through the municipal treatment system and into navigable waters without sufficient treatment which would not have been provided by municipal treatment alone, and to prevent damage to the municipal treatment plant. This requirement again is consistent with the Administration's bill.
11. Waste treatment facilities construction
a. Federal financial assistance – The allocation of Federal financial assistance to the States is based upon needs as determined by EPA in its Cost of Clean Water survey of States and municipalities. This was the Administration's recommendation.
b. User charges – User charges must be imposed by municipal grantees on both industrial and non-industrial users. Industrial user charges to defray the capital cost of projects attributable to such industrial users may be retained by the community, to the extent such charges equal the amount of non-Federal capital costs and an amount needed for expansion and reconstruction of such treatment plant. However, the portion retained for expansion and reconstruction may not exceed 50% of industrial user charges. The Administration bill originally proposed the user charge requirement on municipal grantees. Our bill further provided that such user charges be retained at the municipal level, as distinguished from the Senate version of this bill, which required the return to the U.S. Treasury of industrial user charges with respect to the capital cost.
c. Collection systems – The enrolled bill includes collection systems in existing communities within the definition of eligible projects. It has been the Administration's view that collection systems should be included within the scope of eligible projects if such inclusion is the most cost-effective solution.
d. Regional waste treatment management plans – The enrolled bill provides for the designation of appropriate regions for which waste treatment management plans are to be developed. All sources of pollution within such region must be taken into account. Projections must be made of future population and industrial growth, so that waste treatment facility construction and regulatory requirements will be achieved in a meaningful context. The Administration endorsed the concept of such regional approaches, but took issue with the failure of earlier versions of the bill to include elected officials in the planning process. The enrolled bill now includes appropriate consultation with appropriate elected and other officials of local governments s
12. Permit program
A Federal-State permit program whereby effluent limitations would be applied to individual dischargers is provided. Full permit-issuing authority may be passed to the States on the basis of Federal criteria. State permit programs now functioning may continue to function after enactment and until full permit-issuing authority has been passed to such States. However, during this interim period such State permit shall be subject to a Federal veto. The Federal overview thereafter shall consist of:
a. total withdrawal of a State program in the event of State failure;
b. Federal determination of disputed interstate effects of a discharge; and
c. Federal veto in the event the proposed State permit is determined by EPA to be contrary to law.
The inclusion of a Federal-State permit program is in full response to an Administration initiative and legislative recommendation. The provision for passing the permit-issuing authority to the States and for the limited Federal overview is consistent with our recommendation.
13. NEPA exemption
The enrolled bill exempts all actions of the Administrator taken pursuant to authorities of this Act with the exception of (a) waste treatment facility construction, and (b) new source permit, from the provisions of NEPA. This is in response to Administration urging to remove a major obstacle from the efficient functioning of the permit program .
14. Calvert Cliffs provision
The enrolled bill in Sec. 511 (c) (2) requires Federal agencies to accept effluent limitations of EPA and State certifications with respect to water quality as conclusive, but does not exempt such Federal agencies from the requirements of NEPA. This is consistent with Administration's policy.
15. Environmental financing authority
The Administration proposed the establishment of an Environmental Financing Authority whereby municipalities that are unable to market municipal bonds satisfactorily on the open market could sell their bonds to the E.F.A. at a favorable interest rate. The E.F.A. in turn would sell the purchased bonds on the market. The Administration's proposal in its entirety is incorporated in the enrolled bill (section 12).
Although the enrolled bill does incorporate many of the recommendations of the Administration, it departs from those recommendations in several significant provisions:
1. The enrolled bill authorize $18 billion of obligational authority over a three-year period, as contrasted with $6 billion recommended by the Administration for the same period. This is largely the result of the Congress adopting a later EPA needs survey than the one that provided the basis for the Administration's request.
2. The Federal share of waste treatment facility projects would be fixed at 75%, as distinguished from 50% recommended by the Administration.
3. State matching funds for waste treatment facility grants are not required nor is any inducement for such matching provided. The Administration recommended inducements for State matching.
4. Reimbursements for waste treatment facility projects constructed during the period 1956 to 1966 may be made in an amount equal to the difference between what they received and 30%. The Administration has characterized such reimbursement as "windfall."
5. Reimbursement of States and municipalities which prefinanced the Federal share of the cost of construction of treatment plants during the period 1966 to 1972 is authorized at a minimum of 50% of the cost. This is contrasted with the Administration's proposal for reimbursement of these projects to the extent grants were authorized at the time construction of such projects was commenced (30%, 40%, 50%, 55%).
6. Storm and combined sewer projects are included as eligible for Federal financial assistance. The Administration has consistently recommended that such inclusion be deferred. It should be noted, however, that such projects will be subject to a separate set of guidelines promulgated by the Administrator.
7. The enrolled bill provides for "contract authority" for both waste treatment construction commitments and regional waste treatment management planning commitments. The Administration has recommended that the traditional authorization/appropriation process be retained.
8. The enrolled bill would limit the standing of citizens and groups in Federal courts to enforce the requirements of the Act to those who can demonstrate interest. This is contrary to the Administration's proposal, whereby citizens and groups would have such standing without regard to showing of interest.
9. The enrolled bill would authorize $300 million for an eutrophication control program to restore polluted lakes. The Administration has opposed any separate regulatory or financial schemes for particular bodies of water. However, this authorization is subject to appropriation and apportionment.
10. The enrolled bill would amend the Small Business Act to authorize $800 million for low interest loans to small businesses to assist in the financing of waste treatment facilities needed to meet the requirements of the bill. The Administration did not recommend this provision.
Control of Funding
Clearly, the major difficulty we have with the enrolled bill is the increased funding it would provide in Title II beyond the amounts recommended by the Administration for Federal financial assistance to States and municipalities for the construction of waste treatment facilities and for the reimbursement of States and municipalities which have constructed such facilities.
Central to this problem is the question of the extent to which the Executive Branch can control the obligation of funds and concomitant cash outlays from the Treasury.
The $18 billion authorized to be appropriated for new waste treatment facility construction (Section 207) is to be made available to States and municipalities through a contract mechanism.
When the plans and specifications of an applicant are approved by the Administrator, a commitment of the Federal share is made.
Does the Executive Branch have authority to impound these funds which are authorized to be obligated? We have been advised by our General Counsel that such authority does exist, notwithstanding the recent case of Missouri v. Volpe, W. D. Mo., Cent. Div., CA No. 1616, June 19, 1972.
Missouri v. Volpe held that macro-economic (anti-inflationary) goals were improperly considered by the Executive in deciding whether to approve a State's plans, specifications, and estimates for a particular highway project. The court found no Congressional recognition of the propriety of using such factors. In fact, Congress expressed intent in the Federal Highway Act that highway funds should not be impounded.
The situation is directly opposite in the case of the enrolled bill, however. The enrolled bill contains provisions, supported by legislative history, which show Congress's express recognition of the Executive authority to impound funds authorized by Title II. Recent White House pronouncements have indicated a Presidential willingness to veto bills which are inflationary or which provide funding at levels higher than requested by the Administration. This state of affairs was recognized in Congressional floor debate on the enrolled bill. The Conference Committee, in order to lessen the likelihood of veto of the bill, incorporated amendments proposed by Representative Harsha at the Office of Management and Budget's suggestion.
The Harsha amendments deleted the word "all," which in the House version preceded the word "sums" at the start of Section 205, and added the words "not to exceed" in several places in Section 207 (the section authorizing appropriations.) Floor comments of Senators Muskie and Nelson, and Representatives Harsha, Gerald Ford, and Robert Jones clearly show that the intent of these amendments was, in Representative Harsha's words, "to emphasize the President's flexibility to control the rate of spending." The House Committee on Public Works was said to be "acutely aware that moneys from the highway trust fund have been impounded by the Executive ... obviously expenditures and appropriations in the water pollution control bill could also be controlled. However, there is even more flexibility in this water pollution control bill because we have added 'not to exceed' in section 207.
"The committee recognizes there are many competing national priorities. That is the very reason the committee has placed in this legislation the flexibility that is needed for the executive branch."
Senator Nelson stated: "Only if the President's Office of Management and Budget or the Congress specifically directed otherwise would the money not be available at the levels in the legislation . . ."
Senator Muskie's remarks are to the same effect.
Accordingly, we conclude that in enacting the pending water legislation, Congress clearly contemplated the application of macroeconomic or anti-inflationary factors in deciding whether the full amount of authorizations or only a portion thereof should be made available for obligation. Traditional impoundment techniques pursuant to 31 U.S.C. 665 may properly be employed to limit the amount of obligations to be incurred under Title II of the enrolled bill.
The major fiscal impact during fiscal years 1973-1975 will result not because of obligations incurred for new construction of facilities, but as a result of reimbursement for projects already constructed or under construction. (This is dealt with in detail below.)
The enrolled bill authorizes a total of $2.75 billion for two categories of reimbursements. Since these funds are authorized to be appropriated they will be subject to the usual controls and safeguards of the budgetary and appropriations process, both within the Executive Branch and the Appropriations Committees of Congress.
Through these mechanisms the windfall aspects of the reimbursement provisions, as well as the timing of funding can be controlled.
The numerous conditions, limitations, and requirements with respect to treatment facility construction grants, which must be articulated in administrative regulations pursuant to the enrolled bill provides a broad range of controls. Through these administrative mechanisms, storm and combined sewer projects could largely be deferred, collection system projects could be minimized, and the phasing of commitments and funding outlays for all projects could be regulated through the rigorous application of stringent requirements.
Fiscal Impact
An analysis of the fiscal impact of the enrolled bill indicates that there would be:
No appreciable increase in Fiscal Year 1973 outlays from the amount indicated in the President's budget;
A total of $33 million in outlays in Fiscal Year 1974 resulting from the $18 billion contract grant authority;
Potential flexibility for holding program outlays in Fiscal Year 1974 to the approximate level projected for Fiscal Year 1973;
A total of $2.75 billion in outlays over the period Fiscal Years 1973-1976 resulting from the $18 billion contract grant authority; and
A major increase in outlays occurring in the latter half of the decade, continuing into the 1980's.
Construction grant outlays for Fiscal Year 1974 under the enrolled bill are expected to correspond to the $1.6 billion projected for the pricing of the Administration's proposed bill in January 1972. The major outlays produced by the contract grant authority will not occur until the Fiscal Years 1976-1981 time period.
The outlays for construction grants generated by the enrolled bill and the incremental increase over the Current budget is contained in the following table:
[Table omitted]
The bases of these estimates are:
Authorizations. Approximately 90% of the total $24.6 billion authorized by the legislation is associated with Federal assistance programs for the construction of pollution control facilities. Within this amount, $18.35 billion is for new municipal projects and $2.75 billion is for projects on which construction is completed or underway.
Reimbursable Projects. $2.75 billion is authorized for payment of the Federal share on projects where States and local communities have prefinanced the Federal Share.
Construction has been initiated on all such projects.
Fiscal Years 1967-1972
Reimbursable Projects. During these years many projects have been initiated with only token Federal funding, even though funding was promised when appropriations became available. The unfunded Federal share "owed" these projects is $2.0 billion. The enrolled bill recognizes this debt and retroactively increases the Federal share to 50%-55% for projects initiated in the Fiscal Years 1967-1972 time period. Many of these projects were to receive a 30% Federal share.
The cost of the retroactive increase or "windfall" is estimated at $500 million. However, the "owed" reimbursable portion represents a commitment on the part of the Administration. In his February 1971 Message on the Environment, the President stated:
"We must also assure that adequate Federal funds are available to reimburse States that advanced the Federal share of project costs."
The enrolled bill apparently precludes any segregating in the payment process of the "owed" from the "windfall" reimbursement. EPA proposes to administer payments so the total "owed" and "windfall" adhere to the $2.0 billion authorization level.
The enrolled bill allows the Administration to phase payments against these projects and adjust for overall Federal budgetary considerations. The foregoing table does not include such an adjustment. Postponing obligations for reimbursable projects could reduce Fiscal Year 1974 outlays to the approximate level of Fiscal Year 1973. This flexibility would not have been available under the Administration's proposal.
Fiscal Years 1957-1966
Reimbursable Projects. For projects constructed in the Fiscal Years 1957-1966 time span, the enrolled bill introduces a retroactive Federal payment of 30%. $750 million is authorized for these projects. As no significant Federal assistance program existed during this period and there was thus a lack of Federal commitments, EPA proposes that no appropriation be sought and that any appropriation not be apportioned for such a "windfall."
Non-Reimbursable Projects. The remaining major increment in the outlay projection is for non-reimbursable projects for which allocation of existing appropriations has been made to the States. Outlays for this area are uncontrollable.
New Projects. For new construction, the enrolled bill authorizes $350 million to cover the unauthorized balance of the Fiscal Year 1972 appropriation, and $18 billion in contract grant authority over Fiscal Years 1973-1975. Because of the lengthy interval between project approval and completion of construction for most treatment works, no appreciable outlay payments resulting from this contract grant authority will occur until after mid-decade.
The only relative near-term increase in outlays that results from the enrolled bill is that produced by increasing the Federal share from 50%/55% to 75%.
The total value of construction initiated in the near-term under the enrolled bill is expected to correspond closely to the total value of construction that would have been initiated under the Administration bill. Under the Administration's proposal, communities were free to continue to initiate reimbursable projects, were not constricted by the $6 billion authorization, and could have substantially increased this amount. Reimbursable projects are precluded under the enrolled bill and the $18 billion contract grant authority represents a ceiling, while the Administration's $6 billion proposal represented a floor. With the projected close correspondence in total near-term value of construction starts, the potential inflationary impact upon the entire construction sector would be minimized.
The total amount of contract grant authority contained in the enrolled bill is formulated from the Administration's estimate of construction needs as submitted to the Congress in February of this year. The total estimate amounted to $18.1 billion. The Federal share at 75% would amount to $13.6 billion. This needs estimate did not include any allowance for inflation, nor did it include funds for combined storm, and collection sewers, or for recycled water supplies. These are project eligibilities newly specified by the enrolled bill.
This needs estimate provided to the Congress was constructed to support the commitment of the President in his State of the Union message of January 22, 1970, to "put modern municipal waste treatment plants in every place in America where they are needed to make our waters clean again, and to do it now." This commitment was repeated in the February 1970 Message on the Environment, which enunciated funding support for "every community that needs it with secondary waste treatment, and also special, additional treatment in areas of special need, including communities on the Great Lakes." The commitment was re-endorsed in the February 1971 Message on the Environment with a statement that we should provide "adequate funds to ensure construction of municipal waste treatment facilities needed to meet water quality standards."
The enrolled bill incorporates the Administration's recommendation that the allocation to the States be done on the basis of needs, rather than population. The enrolled bill then reflects within the authorization, the latest needs' estimate provided by EPA.
Impingements on Construction Starts. As mentioned above, the enrolled bill imposes on each grant applicant certain prerequisite conditions. These include industrial pretreatment, industrial capital cost reimbursement, equitable service charges against all users, river basin or regional planning, environmental impact statements. and, several other certification and compliance requirements. It is expected that conforming to these many conditions will significantly delay project approvals and postpone sizeable outlays in the near future.
Further, by prioritizing the eligibility criteria as provided within the framework of the legislation and by using cost-benefit tests of Environmental Impact Statements, obligations in the near-term can generally be restricted to only those projects necessary to meet the Administration's commitment to fund facilities required to achieve water quality standards. EPA's estimate, as provided to the Congress this year, of the cost of such facilities was $18.1 billion. The Federal share at the 75% figure in the proposed legislation would be about $14 billion in new contract authority to be phased over mandated requirements of the enrolled bill. Because of the constraints on the capability the period Fiscal Years 1973-1976, the balance of $4 billion in contractual authority could be obligated after Fiscal Year 1976. Such a phasing is expected to permit EPA and the Nation to adhere to the legislatively mandated requirements of the enrolled bill. Because of the constraints on the capability of the construction sector, achieving the legislative mandates will be difficult. This construction industry constraint could further stretch out outlays in the latter part of this decade.
Non-Construction Grant Programs. Nearly all non-construction grant programs are subject to budget request, appropriation, and apportionment. EPA requirements for these programs have not been analyzed in these comments on the enrolled bill as they are less than 10% of the total authorization, and as they can be further controlled by the Office of Management and Budget and the President.
Impact on Permit Program and Industrial Controls
Despite the national character of pollution, it has not been dealt with uniformly. Varying local revenue capabilities, economic pressures, and citizen interest have often stagnated community and State initiative. To assure equity and national progress the Federal Government undertook to coordinate and support the many various efforts to control water pollution.
As the President stated in his 1970 Message on the Environment, ". . . strict standards and strict enforcement are nevertheless necessary – not only to assure compliance, but also in fairness to those who have voluntarily assumed the often costly burden while their competitors have not. Good neighbors should not be placed at a competitive disadvantage because of their good neighborliness."
To overcome these existing disparities, the Administration proposed that "standards be amended to impose precise effluent requirements on all industrial sources." The enrolled bill has done so.
Further, the Administration established the Refuse Act Permit Program as a major tool to clean the Nation's waters. The enrolled bill formalizes the Administration's initiative by mandating a permit program. The legislation establishes national baselines for classes and categories of industry, and an equitable assessment against all discharges within each class or category.
There has been some apprehension that clean water may result in economic distress. We have examined this. Joint EPA/Commerce/CEQ studies indicate that less than 0.05 % of the Nation's work force will be affected by plant closures.
This we expect to be offset by greater demand in the control equipment and construction industries. Of the forecasted 200 to 300 plant closures caused by pollution control measures in the 1972 to 1976 time period, nearly all would have occurred by 1980 anyway because of the plants' marginal economic efficiency. (An additional 800 closures are anticipated as a result of the normal course of business.)
Beyond expanding the present permit program to cover all discharging points into the Nation's waters (the Refuse Act was generally confined to the direct discharge of industrial waste), the enrolled bill affords EPA the opportunity to extricate the Permit Program from its current judicial morass. The two court decisions of Kalur and Pennsylvania Industrial Chemical Corp. (PICCO) have, in parallel fashion, encumbered the program with an overwhelming administrative burden which has practically precluded permit issuance and suspended industrial enforcement actions.
We have lost much momentum in this area as is witnessed in the progress of permit applications at the initiation of this program in 1970.
Because of the Kalur decision only 20 out of 20,000 permits have been issued.
If the new legislation is not enacted this program probably will be destroyed. The Administration will be embarrassed for having initiated a highly publicized and initially controversial program which ended up in total failure and we will in effect simply throw away over 20,000 permit applications prepared at great expense and effort by industry. Industry went through the work of submitting over 20,000 applications (at costs for preparation and filing estimated in excess of $100 million).
VETO EFFECT
We can anticipate several effects resulting from a veto of this legislation.
The enrolled bill continues authorizations for many activities that represent the core of much of the Federal program. Wholly dependent upon the enactment of the pending legislation are areas such as:
Development of discharge guidelines for industry;
Monitoring and surveillance of water quality;
Research and development of advanced treatment technologies;
Health effects studies;
EPA participation in oil and hazardous material spill control efforts;
Water quality criteria investigations and research; and
Studies on procedures and methods to control pollution from agricultural, mining, transportation, and construction activities. Nearly 1/6 of EPA's total personnel strength, or approximately 1,200 permanent and 250 temporary positions, are assigned to these areas. A pocket veto could result in terminating their employment. In several areas, ongoing uncompleted study efforts would be aborted, sacrificing the incurred expenditure of time and funds.
There presently exists a "wait and see" mood on the part of State and local governments. Aggressive program activity has been abeyed awaiting the passage of the legislation. This stagnant condition will be compounded by the uncertainty that will be bred by a Presidential disagreement with Congress over the content and direction of the Federal program. More importantly, it will counter the President's demand that we "not slacken our pace, but accelerate it."
We will be confronted by the inequity of trying to pursue, through enforcement means a control program against industrial dischargers, while failing to fund municipal plants on the same stream. and not controlling those industrial wastes discharged through municipal plants. As the President stated, "A river cannot be polluted on its left bank and clear on its right. In a given waterway, abating some of the pollution is often little better than doing nothing at all, and money spent on such partial efforts is often largely wasted."
Finally, we can anticipate many groups questioning the degree of Federal commitment and interest, and the Federal Government's ability to provide stable and effective leadership. The momentum of awareness and action will not be sustained and the attainment of the President's goal of "true quality of life in America" will be hindered. It has taken eighteen months to produce this enrolled bill. Program delay and indecision have become common. As the President said, "as we strive to expand our national effort, we must also keep in mind the greater cost of not pressing ahead."
Conclusion
Both the Administration's proposal and the enrolled bill share a common purpose of a national program of united endeavor to improve the quality of water. I believe the enrolled bill continues the existing program and is faithful to the intent of the Administration's proposal.
Most of the near-term increases in outlays result from Congress providing funds to pay existing commitments, not new ones. These principally result from payments of the Federal commitment to communities and States which pre-financed the Federal share of construction projects. Other increases result from the Congressional mandate that we conduct knowledgeable and effective planning, permit, and monitoring programs.
EPA is not unmindful of the limited resources that the Federal Government can apply to its important programs. It is a constraint that fades many hopes. We are aware of the fiscal magnitude of the enrolled bill. It concerns many people.
But countervailing this concern are the consequences of failure to meet our national need in this area. More so than any other, water is our most important national resource. It sustains our industry, our farms, our commerce, our enjoyment, our lives. It is also most unforgiving if it is abused. The effects linger and, if continued, multiply.
It seems reasonable to me to spend less than 1 % of the Federal budget and two tenths of 1 % of the Gross National Product over the next several years to assure for future generations the very survival of the Gross National Product.