December 15, 1977
Page 39170
CLEAN WATER ACT OF 1977 — CONFERENCE REPORT
Mr. MUSKIE Mr. President, I submit a report of the committee of conference on H.R. 3199 and ask for its immediate consideration.
The PRESIDING OFFICER. The report will be stated.
The legislative clerk read as follows:
The committee of conference on the disagreeing votes of the two Houses on the amendment of the Senate to the bill (H.R. 3199) to amend the Federal Water Pollution Control Act to provide for additional authorizations, and for other purposes, having met, after full and free conference, have agreed to recommend and do recommend to their respective Houses this report, signed by all of the conferees.
The PRESIDING OFFICER. Without objection, the Senate will proceed to the consideration of the conference report.
(The conference report is printed in the House proceedings of the RECORD of December 6, 1977.)
Mr. MUSKIE. Mr. President, it is not my impression that final disposition of the Clean Water Act will take much time. I find no disposition to ask for a roll call vote, so I gather that there is widespread understanding of what the conference has produced by way of the resolution of differences between the House and Senate versions. I think that formal consideration of the conference report should take a minimum amount of time, I say to my colleagues who may be interested in other matters we shall consider, especially my good friend from Wisconsin (Mr. NELSON).
Mr. President, this legislation represents the culmination of 2 years' of effort to extend the Clean Water Act. It represents the mid-course correction that was promised during consideration of the landmark 1972 amendments to the Federal Water Pollution Control Act.
The thrust of this legislation is twofold — first, to improve the tools available to the Administrator of EPA to deal with increasingly complex water pollution problems and, second, to make much more flexible those requirements of the act which would otherwise demand a greater investment in regulatory resources and economic investment than benefits derived from the effluent reductions would achieve.
This bill was not easy to put together. In some respects it was more difficult than the 1972 act because the political environment is very different today than in 1972. But, as in 1972, a good faith effort on the part of both bodies, combined with an intense desire to get this legislation behind us so that the water pollution program could get back on track produced the result.
Mr. President, my complete statement describing the results of the conference report consumes 100 pages. I shall be happy to get into any aspect of this bill that any Member of the Senate would like before we act finally on it. This bill has had careful consideration. I know that over the months since the Senate first gave consideration to this legislation, because of constituent interests to one or another aspects of the clean water policy of this country and what this bill would do to that policy. So I am confident that there is widespread understanding of what we have done.
Mr. President, at this point, I wish to express my appreciation to several of my colleagues, Members of the other House, and staffs who have made possible our consideration of this bill today. As some of you know, I was not available, for reasons of health, to participate in the conference as fully as I would have liked. I was unable to be in attendance, but I undertook to follow developments in the conference.
Because I was not present, special gratitude is owed by the Senate to Senators BURDICK and STAFFORD, who committed so many hours in the final days of conference to achieve this result. They were joined by Senators RANDOLPH, CULVER, ANDERSON, CHAFEE, and McCLURE, and by Senators HART, GRAVEL, WALLOP, DOMENICI, and BAKER. And even then there might not have been any bill if the chairman of the full committee, Senator RANDOLPH, had not, in the end, come to the conference and appealed to the House conferees to accept a compromise proposed by the Senate as a means of breaking the final deadlock.
As is so often the case, Senator RANDOLPH's personal powers of persuasion were essential to final agreement.
Mr. President, it is appropriate to recognize the important contribution of Representative RAY ROBERTS of Texas and his fellow House conferees. Representative ROBERTS pressed hard for this agreement. His good humor and willingness to compromise made final action possible. The distinguished chairman of the House committee, Mr. JOHNSON of California, can take great satisfaction in the role Representative ROBERTS played.
I would also like to recognize the hard work of each of the other House conferees who were untiring in their attendance and participation: Congressmen ANDERSON, ROE, McCORMACK, BREAUX, GINN, OBERSTAR, NOWAK; Congressmen HARSHA, CLEVELAND, CLAUSEN, and SNYDER, and Congressman FOLEY. Each of these men made a contribution to this bill and can be proud of their effort to keep the Nation's clean water program on track.
Finally, I would be remiss if I did not recognize the long hours of work of the staff of the two committees. The joint staffs put together recommendations for the conferees which bridged areas of significant disagreement. They worked nights and weekends to develop workable proposals for the conferees' consideration. Each of the staff deserves special recognition from the Senate and the House for their efforts. I would like to specifically mention for the record the following staff : John Yago, Leon G. Billings, Phil Cummings, Sally Walker, John Freshman, Jackee Schafer, Mimi Feller, and Jim Range from the Senate, and from the House, Richard Sullivan, Lester Edelman, Gordon Wood, Bill Corcoran, Joan Sovalic, Jack Schenendorf, Erroll Tyler, and Mike Toohey.
I would like to single out for recognition the House legislative counsel. Mr. Robert Mowson has been working as counsel to the House Committee on Public Works and Transportation for as long as I can remember. He has been counsel to conferences on water pollution since we first began meeting with the House committee in 1963. He has always served as counsel to the conference as a whole and not just to the House. Again this year, in a time of great stress and pressure, Bob Mowson has served us well. But more important, Bob Mowson has continued to write legislation in a straightforward and understandable manner, a fact which all Members of Congress should appreciate. I want to personally thank Bob and his young associate, Arnie Havens, for their help again this year.
Mr. President, in 1972, Congress established as an objective the restoration of the chemical, physical, and biological integrity of the Nation's waters. That is still the objective.
Congress established a national goal of the elimination of the discharge of pollutants. Congress established an interim water quality goal which was to be achieved where possible by 1983. These are still the national goals.
In1972, the Congress declared it to be national policy to eliminate toxic pollutants in toxic amounts. And, Mr. President, in 1972, Congress declared that recycling and reuse would be the primary objective of the waste treatment construction grant program. This bill says that the Congress really meant what it said in 1972.
In every respect, the conference agreement underscores the basic thrust of the Senate bill — the application of technology to reduce the flow of waste to streams. However, the cost of high technology, capital-intensive waste water treatment systems is so great that utilization of less costly alternative waste treatment systems must be given high priority for Federal funding.
This is a comprehensive bill, Mr. President. It has nearly 80 provisions. As I said at the outset, it provides the Administrator new tools and, at the same time, provides additional flexibility so that he may maximize his resources for high priority objectives.
Here is a bill which will more sharply focus EPA's limited resources on priority water pollution problems.
Here is a bill which extends our pollution control capability to the limits of the resource jurisdiction of the United States so that oil and hazardous material spills which threaten our fishery resources can be cleaned up, and the spiller can be forced to pay the cost of cleanup and any damages to natural resources.
Here is a bill which authorizes the Administrator of EPA to require industry to adopt practices which will avoid the Kepone kind of runoff that has made the James River an ecological disaster.
Here is a bill which extends for 5 years the Federal construction grant program for water pollution and keeps intact the requirement that industries which use these systems pay their fair share of the costs of maintaining those systems.
Perhaps most significantly, Mr. President, here is a bill which includes pervasive requirements to find and apply methods to recycle, reclaim and reuse wastes and waste water. While this was intended in 1972, the 1977 amendments say emphatically that the Congress really means to eliminate the discharge of pollutants as rapidly as possible.
This is not to say that the bill does not ease prior requirements. It does. Deadlines for the next phase of controls have been extended 1 year.
But the ability of the Administrator to get toxics out of water has been measurably improved. And the ability to challenge the level of control required for so-called conventional pollutants has been greatly reduced. At the same time, the water quality impacts of these pollutants will be diminished, both as a result of advanced controls and as a result of improved water quality standards.
The conference did provide a safety valve for other pollutants. Should the Administrator decide to regulate pollutants which are not toxic or conventional, a polluter has a chance under these amendments to prove no adverse environmental effects relating to a particular pollutant, and after making such a showing, escape regulation.
Let me first discuss the concessions which have been made to the practical limitations of the Environmental Protection Agency. This bill directs the Administrator to emphasize the removal of potentially toxic pollutants from waste streams. It directs the Administrator to reduce the discharge of other pollutants about which a great deal is known as rapidly as possible within the constraint of a reasonable relationship between cost and effluent reduction benefits.
The bill does not require that the effluent reduction achieved be equated to the specific water quality benefit because that test is no more realistic in 1977 than it was in 1972. But it does recognize that in establishing limitations for conventional pollutants for categories and classes of industries, the best available technology may not be the most appropriate technology in terms of the relationship of the cost of achieving a particular level of reduction and the amount of reduction actually achieved.
Under the amendments to section 304 effluent guidelines for conventional pollutants are subject to a new cost effectiveness test. Effluent guidelines for toxic and nonconventional pollutants, however, are not subject to any test of cost in relation to effluent reduction benefits or any form of cost/benefit analysis.
This is a fine line. It is one that the conferees believe the Administrator can walk. We are satisfied that he has the capacity to relate cost of effluent reduction to the effluent reduction benefits, and we have provided him with some guidance. The bill provides as a basis comparison of the costs for industry to the costs for municipalities. Clearly, if the cost of achieving a certain level of reduction of conventional pollutants for industry is less than the cost of achieving
a similar level of reduction for a community, it would be reasonable. Thus, in the language of the amendments, best conventional control would, and often will, be identical to best available control. The result of the cost test could be a 1984 requirement which is no more than that which would result for best practicable technology but also could result in effluent reductions equal to that required in application of best available technology.
The contrary is not necessarily so. One could well pose a case the cost of achieving a reduction of a conventional pollutant from an industrial category might greatly exceed the cost for the municipal category. In that case, the Administrator might determine such reduction to be unreasonable at this time and thus modify the requirement in accordance with regulatory authority.
It is important to note that the Senate provision which used a complex modification mechanism for making this kind of determination for conventional pollutants has been deleted. The establishment of regulations applicable to conventional pollutants continues to be the effluent guideline approach of the 1972 act.
Thomas C. Jorling, Assistant Administrator of the Environmental Protection Agency for Water and Hazardous Materials, testified before the Committee on Environment and Public Works this past June. He said:
There will be some industries for which best practicable technology controls for conventional pollutants have achieved all that can reasonably be expected for the immediate future. However, there will be a number of cases where this will not be so. For example, there currently are some industries where the estimated costs of best available technology (BAT) increment of control for BOD is far below even the cost of secondary treatment for municipal systems in terms of cost per pound of pollutant removed. Clearly this is not a hard and fast test of what BAT should be for industry, but it tends to substantiate the point that in some industries additional controls for conventional pollutants can be obtained under BAT for very reasonable costs. Accordingly, the Agency is in the process of reviewing its existing BAT standards for conventional pollutants to insure their overall reasonableness. Where the BAT standards result in additional costs that appear to be unrealistic in light of the associated incremental reductions in pollutant loadings, the standards will be appropriately modified. We believe the Act clearly allows for such a test of 'reasonableness,' especially in the absence of any toxic pollutant problems. As our analysis continues, should we find that the existing legislation does not provide suitable flexibility we will offer appropriate legislative amendments.
Another area of flexibility relates to deep ocean discharges of municipal waste. It has been alleged that a municipality can discharge its waste into ocean waters after something less than secondary treatment without causing any ecological perturbation. Witnesses from Honolulu, Seattle and Los Angeles have alleged that they have accumulated sufficient evidence to prove no adverse effect on water quality and aquatic ecosystems from such discharges.
The conference provision is identical to the Senate bill in this respect. It does not change the Senate bill in any way. The Administrator should look to the legislative history in the Senate for guidance on this provision.
As was the case in the Senate bill, this provision is intended to provide a very narrow opportunity for certain municipal dischargers, if they can meet a specific burden of proof, to qualify for a modification of the secondary treatment requirement.
Mr. President, a second area of flexibility in this bill deals with the concept introduced by the House which makes a distinction between those pollutants about which we know a great deal — the so-called conventional pollutants — and those about which we are increasingly concerned, the so-called toxic pollutants. The conference bill recognizes a third area of pollutants — the grey area or non-conventional pollutants. It is these contaminants to which EPA can direct only limited, if any, resources in the near future. It is these contaminants about which there is the most to be learned, and it is these contaminants for which industry contends regulation may be inappropriate.
Under existing law, non-conventional pollutants would be subject to the regulatory scheme defined by best available technology — that is, effluent guidelines applicable to classes and categories of industrial dischargers. I did not think that a procedure for modification of the best available technology applicable to these non-conventional pollutants was appropriate or necessary at this time. But the House conferees insisted that such a procedure be written in the law in order to provide a safety valve for the future, and the Senate concurred in order to obtain action on this legislation.
I suspect that, as a practical matter, most of these pollutants will not be subject to best available technology but, rather, will be regulated as surrogates to conventional and toxic parameters. To the extent that non-conventional pollutants are not specifically regulated by best available technology, the procedure for modification from best available technology is not available. To the extent that they are specifically regulated by best available technology, the modification procedure cannot act to affect any other requirement regarding a conventional or toxic pollutant.
Mr. President, this provision will work to improve both the knowledge of the effects of pollutants and their capacity for regulation. The Administrator may, instead of adding to the toxics list a pollutant about which he has doubt, determine instead that the pollutant should be regulated by best available technology. This determination would then trigger the process by which an industrial class or category would make the kind of investment necessary to prove that the discharge of a particular pollutant will not interfere with the balanced population of fish, shellfish, and wildlife as defined and to show that the pollutant poses no risk to aquatic life, public health, et cetera. However, any doubts as to a pollutant's toxicity should be resolved on the side of protection and margin of safety and therefore listed as a toxic. The changes made to section 307are to facilitate this discretionary authority.
The procedures for modification place specific burdens on the person seeking the modification, and it is expected that a considerable level of investment and a considerable period of time will be required to make these showings. The result of these studies will add greatly to the level of knowledge of the impacts of pollutants in the environment. Herein lies an important point.
It is not acceptable to allege absence of harm solely on the basis of the loss of the pollutant in the environment. The absence of harm test as specified in this bill, including the secondary treatment modification provision, will require the applicant for modification to show the pathway of the pollutant through the environment and its ultimate disposition in the environment. Only in that way can there be any real demonstration that the discharge of that pollutant will not interfere with a balanced population of aquatic life.
For example, it is possible that a pollutant may be discharged in a freshwater environment and not taken up by any organisms in that environment. However, that pollutant may eventually end up in the ocean environment where more sensitive organisms will be affected.
I only make this point to indicate the extent of the burden which this provision places on the applicant. Any simple allegation that the absence of knowledge is evidence of absence of harm is simply unacceptable. I ask unanimous consent that an article from the December issue of Science which underscores this point be printed at this point in the RECORD.
There being no objection, the article was ordered to be printed in the RECORD, as follows:
CHEMICAL PLANTS LEAVE UNEXPECTED LEGACY FOR TWO VIRGINIA RIVERS
(By Luther J. Carter)
The tourist passing through Virginia enjoys what for the most part is still a fine scene — the soft outlines of distant mountains, the sweep of lush valleys, and splendid pastoral vistas and riverscapes are all there to please the eye. Indeed, the official slogan "Virginia is for lovers" is credible enough, for, besides the state's natural blessings, relatively little of it has been touched by the kind of industrial development that grossly pollutes or defaces. This being so, it is surprising and disconcerting to learn that three Virginia rivers are now so badly contaminated by toxic substances that well over 300 stream miles have been closed to fishing, or at least to the taking of fish for eating.
One of these rivers is of course the James, on which most commercial fishing is now prohibited from Richmond to the Chesapeake Bay because of contamination by Kepone. But equally remarkable, though little attention has been given to it outside Virginia, is the contamination of much of the Shenandoah River and the North Fork of the Holston River by mercury.
In fact, this latter problem seems of special significance, both with respect to its persistence — which is extraordinary — and to the questions of regulatory philosophy and practice to which it gives rise.
Not all of the Shenandoah River is contaminated, only the South Fork, which many regard as the best of it. Indeed, if it had been the conscious intent of some malevolent force to do mischief to an exceptional natural treasure, the South Fork of the Shenandoah could have served well as the object of such perverse designs.
Flowing over a bed of limestone and frequent ledges, the South Fork runs northward in a series of great loops between the Blue Ridge Mountains on the east and the Massanutten Mountain on the west. For the canoeist or the float fisherman (the South Fork is famed for its smallmouth bass fishing), the scene is ever changing but is always good and sometimes spectacular, especially when the winding river turns toward the steeply rising slopes of the Massanutten. Along with the rest of the Shenandoah, the South Fork has long been a prime candidate for consideration as part of the national system of wild and scenic rivers, and was so listed in President Carter's environmental message of last May.
Although the Shenandoah was known to have some water quality problems, especially overfertilization from the runoff from farmland and other sources, it was not until this spring that state officials got word that part of the river might be heavily polluted with mercury. On 14 April a delegation from E. I. duPont de Nemours and Company,which has been manufacturing synthetic fibers at Waynesboro, Virginia, since 1929, called on Governor Mills Godwin and Virginia health and pollution control officials and brought the bad news.
Visible if minute globules of mercury had been discovered the previous September in the course of repairing a leaking water pipe beneath the Waynesboro facility's "old chemical building," where mercuric sulfate was used as a catalyst in the manufacture of acetate fiber between 1929 and 1950. Subsequently, analysis of sediment samples taken downstream from the plant in the South River showed that the sediment was heavily contaminated with mercury.
The readings for several samples exceeded 240 parts per million (ppm), compared to readings of less than 1 ppm for sediments tested upstream from the plant. Worse still, the one fish that DuPont had had analyzed for mercury contained 0.86 ppm, or substantially above the Food and Drug Administration (FDA) "action level" of 0.5 ppm which cannot be exceeded in fish that are to be marketed. Although of no legal force in relation to freshwater game fish, which would not be sold commercially in any event, the FDA action level represented a standard by which Virginia health authorities would surely judge whether the fish were too contaminated to be eaten.
The disclosures made by DuPont to state officials were reported skimpily and almost routinely in the Virginia press, but their significance was soon to become more evident. On 8 June Governor Godwin announced, on the basis of sediment and fish samples collected and analyzed by the State Water Control Board (SWCB) , that the South River below Waynesboro and the entire South Fork were closed to the taking of fish for eating. The mercury content in bass caught as much as 77 miles downstream from the DuPont plant had been found to be more than twice as high as the FDA standard.
The extraordinary thing about this contamination problem is that it has been 27 years since mercury has been used in any manufacturing processes at Waynesboro, for in 1950 DuPont abandoned the particular acetate production process in which mercuric sulfate served as a catalyst. Moreover, from its sampling of soil and groundwater on the plant site, DuPont is now convinced that, although a few pockets of contaminated soil have been found, no mercury has escaped from the site into the river for many years. (The SWCB's director of enforcement, David S. Bailey, is "guardedly optimistic" that this will prove to be the case.)
As best anyone could tell, most if not all of the contamination of the river had taken place during the 1930's and 1940's as the result of spills of metallic mercury that occurred at the old chemical building. One likely possibility is that some of the spilled mercury was flushed into the river through storm drains. Normally, all mercury was recycled and the volume kept in active inventory, in 75-pound flasks, was never large. Edward T. Ruehl, the Waynesboro plant's manager for health, safety, and environmental affairs, believes that, all told, probably not much more mercury escaped to the river than could be put in a "Volkswagen gas tank."
Thus it seems that a relatively small quantity of mercury which got into the river between 1929 and 1950 has kept the river contaminated for a period of maybe 40 years or longer and may continue to contaminate it for decades to come. Major floods, such as the one that followed Tropical Storm Agnes in 1972, have repeatedly scoured the river bottom but, while some of the mercury in bottom sediments undoubtedly has been moved about, it has not been swept away.
INTO THE NOOKS AND CREVICES
Because of its great weight (it is 13½ times as heavy as water) and its liquid form, metallic mercury seems to find its way into sheltered nooks and crevices — of which the South River, with its irregular limestone bottom, has plenty — and is not easily dislodged. In fact, high concentrations of mercury are still found in sediment samples taken just below the DuPont plant from the natural trap formed by the remnants of a small dam.
Fifteen miles or so downstream from Waynesboro the mercury concentrations in sediments seem to fall off sharply. But they remain at above natural background levels all the way down the South Fork to Front Royal, 130 miles from the DuPont plant, and for at least 30 miles down the Shenandoah's main stem.
Over a period of years and decades, metallic mercury in bottom sediments can be converted at varying rates to ionic inorganic mercury and to organic or methyl mercury, both of which can be easily transported downstream by river currents. Although relatively insolube in water, some metallic mercury does dissolve, and part of this dissolved mercury becomes attached to suspended soil particles and part remains in solution.
But more important to the uptake of mercury by aquatic life is the fact that microorganisms abundant in the sediments can convert virtually any form of inorganic mercury to methyl mercury. In this form mercury is taken up rapidly by aquatic plants and animals and — of particular significance to its potential for attaining high concentrations (especially in older and larger fish) — it is excreted slowly, having a "biological half-life" of months or even years.
It is in its methylated form that mercury is particularly toxic to humans. If ingested in sufficient amount through a heavy diet of fish (as has happened in Japan), methyl mercury can cause Minimata disease, a severe disorder of the nervous system that can be fatal. By good fortune, no cases of Minimata disease are known to have occurred in Virginia, although epidemiological data are too limited to rule out all possibility of instances of mercury poisoning.
The mercury problem in southwest Virginia on the North Fork of the Holston River,which is far removed from the Shenandoah watershed and is actually part of the Tennessee River system, is in some important respects more frustrating to SWCB officials than the one on the Shenandoah.
The essential difference between the two situations is that, whereas there is as yet no evidence that the Shenandoah is being further contaminated by more mercury from DuPont's Waynesboro facility, the Holston is constantly receiving more mercury from the site of the now closed and dismantled chlorine plant which the Olin Corporation of Stamford, Connecticut, operated at the town of Saltville until the spring of 1972. Moreover, the situation at Saltville is such that the inflow of mercury into the river may never be stopped entirely, whatever the plan of remedial action ultimately agreed to by Olin and the SWCB.
Coincidentally, it was in 1950, the year DuPont stopped using mercury at Waynesboro, that Olin (or rather one of its corporate progenitors, the Mathieson Chemical Company) began using mercury at Saltville, which is noted for its huge underlying salt deposit. For the next 22 years, until the plant was finally shut down (partly because of the pollution control requirements that were to be imposed), mercury served as an electrode in the electrolytic process used to break down sodium chloride to produce chlorine and caustic soda.
In contrast to the situation at the DuPont plant, where mercury was needed in relatively small amounts, the Olin plant used it in huge volume, with the electrolytic cells containing more than 1 million pounds of the metal. As was true of chlorine plants elsewhere, this one at Saltville lost mercury in prodigious amounts, although the aim was supposedly to recycle as much of it as possible. Until 1970 and the big nationwide scare over mercury that led to restrictions on the catching or sale of mercury contaminated fish in nearly a score of states, up to 100 pounds of mercury was lost every day of plant operation. Some of it was lost as vapor, but much of it was lost as liquid mercury spilled on cell room floors or carried away in various waste streams, at least one of which went directly into the river.
Neither Olin nor state health and pollution control officials had been aware of the hazards to human health resulting from loss of mercury to the river for it was not until the late 1960s that the methylation phenomenon by which mercury is made more readily available to aquatic life was discovered by Swedish researchers. Once the danger was realized, the changes brought about at the Saltville plant as well as at other chlorine plants around the country were remarkable. Losses were reduced to as little as a quarter of a pound of mercury a day.
Nevertheless, the cumulative effect of the reckless practices of the past (the health hazards of mercury vapor at least had long been known) had led to what may be an almost hopeless bad problem of environmental contamination. How much mercury has gone into the river is beyond calculation; all one knows is that the mercury concentration in both sediments and fish are high today and are likely to remain high for decades, if not generations to come.
Three-fourths of the fish samples taken in July 1976 at six stations along nearly 70 miles of river showed concentrations at least twice as high as the FDA action level. There is in fact evidence that the contamination extends far down the main stem of the Holston to the Tennessee Valley Authority's big Cherokee Reservoir, more than 100 river miles from Saltville. Eight fish collected this past May from the reservoir's far upper reaches all showed concentrations exceeding the FDA limit. While the sample was too small to justify a ban on the eating of fish from the reservoir — in the case of the North Fork such a ban was imposed by Virginia and Tennessee health authorities in 1970 — it was an ominous sign.
Mercury continues to enter the Holston both from the site of the old chlorine plant and from the two big "muck ponds" which were used for disposal of the primary waste stream from the Olin complex. The ground on which the "cell building" once stood contains an astonishing amount of mercury: according to an Olin consultant, there are some 220,000 pounds of it.
Although the mercury is believed to be present in the soil profile to depths of as much as 30 feet, it is also found near the surface. Sizeable globules of it can be seen along the eroded bank of the river, and during this reporter's recent visit there, a small clod taken from the bank virtually at random contained a globule larger than a dime. Anytime the Holston is in flood, significant amounts of the metal are swept into the stream.
Serious as it is, the problem at the old plant site can perhaps be corrected either by excavating the contaminated soil and extracting the mercury, or, as Olin is now proposing, by sealing off the site from the river with a shield of impervious clay and riprapping. (In 1973, Olin tried to clean up the site by removing the top foot or so of soil, but, as is now evident to all, this was pathetically inadequate.) As for the muck ponds, it has become increasingly apparent that this problem can never be fully overcome; anything short of gargantuan engineering remedies, undertaken at costs that might run into the hundreds of millions, may bring nothing better than a modest, perhaps trifling, amelioration.
The ponds, which cover about 120 acres and extend along the river for more than a mile, contain an accumulation of salts and other wastes that is up to 80 feet thick. Although not much water stands in these basins now, enough water enters them from direct rainfall and from runoff from the adjacent mountainside to make for a problem of mercury contaminated chloride solutions seeping into the river. The discharge of mercury to the river from this source is estimated to average about 100 grams a day, year in and year out. Given the Holston's present grossly contaminated condition, any additional inflow of mercury would be considered intolerable were there any practical means of preventing it. So far, Olin and its consultants have come up with nothing better than a plan to dig a ditch along the mountainside to intercept the surface runoff; but this would at best reduce the seepage into the river by only half, and, if the SWCB staff is correct in its assessment, the reduction would be much less than that.
However severe and pressing the problems at Saltville, the SWCB has generally shown little sense of urgency in dealing with them. Even the matter of finding a prophylactic remedy for the problem at the chloride plant site continues to drag on. "We haven't been balls of fire on this thing," acknowledges Richard Hill, an aide to one of the top SWCB officials. In part, the situation at Saltville seems to reflect the fact that, absent an imminent health threat or economic loss (both present in the Kepone affair), something such as a ban on eating fish from a mercury contaminated river does not appear to bring a public outcry in Virginia. Scarcely anyone showed up either at the public hearing which the State Department of Health held in 1973 on the Holston ban or at the one it conducted recently on the Shenandoah situation. In light of the sharp decline in fishing on the famed Shenandoah, the poor turnout for the hearing on the ban there — no local officials were present and only two citizens — was astonishing.
Actually, from a regulatory standpoint, the mercury pollution problem poses several hard questions that deserve the public's thoughtful attention. Especially is this true in the Holston River case where there is clearly an opportunity to go beyond measuring the extent of the contamination and to reduce the sources of further pollution.
For instance, how far should the state go in holding Olin accountable for the problem at Saltville? After shutting down the plant, Olin gave most of its property there to the town and state, and at present retains title chiefly to some mineral rights and to the muck ponds (which it wanted to give away but could not). Although town council members praise Olin for treating Saltville fairly and generously, the company clearly does not feel that it has an open-ended obligation to see that the mess which it created on the Holston is cleaned up.
Although willing enough to assist in trying to seal off the site of the chlorine plant from the river, Olin wants the SWCB and the town to agree that once a plan of remedial action has been approved and carried out, its obligation with respect to the problem will end. Yet there may not be complete assurance that the plan will succeed. Certainly the efficacy of any remedies tried at the muck ponds will be in doubt. Bailey, the SWCB enforcement chief, indicates that, in his view, the burden of ultimate responsibility is Olin's forever. "I don't think it would be in the state's best interest to enter into a final, blanket agreement," he says.
Another question is, should the state expect some compensation from Olin and DuPont for the contamination of the two rivers? In the Kepone episode, the Allied Chemical Corporation, found to have committed gross violations of law, has been ordered to pay the state and federal governments $18.5 million in penalties, including $5 million which go for research on Kepone in the environment; yet the company remains open to millions in damage claims by individuals and to demands by the state in the future for a massive and costly cleanup of the James River if this should be feasible.
As A. H. Paessler, the SWCB's deputy executive secretary has observed, the mercury contamination of the Shenandoah and the Holston "resulted from no flouting of state or federal law by DuPont and Olin, and neither has been so accused." Nevertheless, as Paessler also acknowledges, the contamination is a fact and those companies are the cause of it. To measure the damage in precise dollar terms would be impossible, but it is clear that the sports fisheries that existed on the Shenandoah and the Holston (the latter was a resource of at least local significance) were of considerable value and that they have been hurt severely. Some informal discussion of the matter of compensation has gone on within the SWCB staff, but there is no sign that it will be pursued.
Closely related to the compensation issue is the question of whether something might be done to rehabilitate the river — or at least shorten the period of contamination. One idea sometimes mentioned is to try to identify and remove some of the more heavily contaminated sediments. The SWCB staff has searched the relevant literature for possibilities, but thus far has found nothing that looks promising.
The agency is now soliciting help in this matter from the Environmental Protection Agency, which so far has left the mercury problem to the state, and from the U.S. Army Corps of Engineers, the Tennessee Valley Authority, and the Oak Ridge National Laboratory. But should any plan for partial rehabilitation of the Shenandoah or Holston be proposed, the question will then surely arise as to who shall pay for carrying it out — the state, the federal government, the company, or all three?
Still another regulatory question raised by the mercury problem has to do with the FDA action level. R. V. Davis, the SWCB's executive secretary, has suggested that the action level perhaps should be raised. Although this suggestion might at first glance be likened to the one somebody once made with respect to Vietnam — declare victory and withdraw — it finds some support in scientific circles.
In Sweden, where extensive research has been done on mercury problems, the action level is twice as high as the one in this country, and some American scientists (such as Peter Krenkel of the Tennessee Valley Authority) believe the FDA limit is needlessly stringent. James B. Kenley, Virginia's commissioner of health, has rejected Davis' suggestion, however. He observes that the action level for mercury is based on "a far larger amount of information and a far lower safety factor" than the action level for Kepone.
In truth, the mercury contamination of the Shenandoah and the Holston appears to have been one of those bad turns of fate about which not much can be done — or at least not much of certain efficacy. But this is not to say that the best response is simply to adjust to the problem and leave the solution to the ages.
Mr. MUSKIE. Mr. President, during the course of debate on this conference report in this and the other body, attempts will be made to bind the Administrator by creating legislative history describing specific situations. The conferees did not examine specific cases for exemptions, extensions or modifications.
The conference report provides a general framework for the Administrator to make judgments. The Administrator should be guided by the framework of the statute and the statement of managers and other appropriate legislative history, and should not feel bound by attempts to legislate by colloquy special cases which are contrary to the letter and intent of the law.
Mr. President, the conference bill is similar to the Senate-passed bill (S. 1952) in many respects. Since the legislative history of the conference report itself is minimal, the conferees expect that the intent expressed in the Senate report be looked to for guidance.
I would like at this point to review several aspects of the conference agreement in order to provide a fuller understanding of the intent of Congress.
TRAINING GRANTS
This section increases the limit of a grant for a training facility from $250,000 to $500,000, exempts any such grant from the priority list requirement of section 204(a) (3), and increases the uses of these funds.
The language which amends section 109(b) (2) of the Federal Water Pollution Control Act is intended to authorize the Administrator in any case where a grant has already been made for a facility to serve two or more States to make an additional grant for individual facilities within any of the participating States. These additional facilities would be supplemental to the multi-State facility. It is not intended that there would be duplication of effort. For example, the States of New Hampshire, Massachusetts, and Maine are planning construction of training facilities within each of their States.
The State facilities would be utilized to train or retrain personnel already operating at treatment facilities. In addition, the six New England States and the State of New York are considering the construction of a regional training facility to be utilized by each of the seven States for the training of new operational personnel. Thus, under this section, the multi-State facility and individual facility in each State could be funded under section 109 of the act if there is no significant duplication of effort.
These authorizations do not provide support for graduate training (master and Ph. D. levels) or State agency fellowships in water quality control curricula as authorized in sections 104(a) (1), 104(g) (3) (A), or 104(g) (3) (B).
Funding authorizations for water quality graduate training grants (masters and Ph. D. levels) to institutions of higher education and State agency fellowships are included in section 104(u) (1).
GRANTS FOR ALTERNATIVE AND INNOVATIVE TECHNOLOGY
The conference agreement emphasizes the need to use alternative technologies instead of conventional secondary treatment plants and encourages the development of new and innovative systems. To accomplish this, the bill requires republication of cost effective guidelines to reflect the long term benefits of reclaiming and recycling, creates a special set aside for rural and lightly populated areas to be used for alternative technologies, and authorizes a special set asides for increasing to 85 percent grants for the use of alternative and innovative technologies. The bill also includes a provision for extension of deadlines for industries which use innovative technologies.
The conferees intend to underscore the requirements of the 1972 amendments that all of those involved in implementing the program — the Environmental Protection Agency, States, communities, and consulting engineers direct the program away from the conventional collection and secondary treatment approach and toward the use of alternative technologies, especially those which rely on controlled natural processes, such as land or lagoons or marshes, in order to make use of the nutrients in the waste waters.
More than any other issue concerning the construction grant program, the conferees are concerned with the need to encourage alternative and innovative systems. The problems of small communities coping with expensive capital intensive waste treatment systems and the wastefulness of discharging valuable nutrient resources to the Nation's waters were stressed throughout the country. The need for new industrial processes which produce no waste was emphasized.
The conference bill, in every possible way, attempts to reinforce the specific statement of the 1972 act with respect to innovation, use of alternatives, and the adoption of policies which would lead to the confined and contained disposal of waste, utilization of the values of waste, and the elimination of the discharge of pollutants to the Nation's waters.
This agreement recognizes that sludge, which is a burden to many communities, can be usefully applied as a soil conditioner, as a source of nutrients, and as a fertilizer. But the agreement also recognizes that often sludge is so contaminated by the chemicals and metals which find their way into municipal waste treatment systems that it is useless. These amendments are intended to reverse the waste of this important resource. The Administrator is expected to heed that emphasis of this legislation. There is no defense for the practice of dumping all of the waste that this country generates into rivers, lakes, and streams. The 1972 act stipulated that the Nation's fresh and marine waters would not be an element of the waste treatment process. That continues to be national policy. For communities and industries, the discharge of waste directly into the Nation's waters and oceans is permitted only where there will be no interference with attainment and maintenance of that water quality which assures protection of water supplies and the protection and propagation of a balanced, indigenous population of fish, shellfish, and wildlife, and allows recreational activities, in and on the water: that is only where ecological balance can be assured. The Agency should expedite promulgation of the criteria in section 403.
Thus, alternative technologies for dealing with waste, particularly land treatment options which will take advantage of the valuable nutrients in the waste stream, and other waste recycling options should become the highest priority for funding under this act wherever these are feasible or available.
The conference agreement provides for a bonus grant, raising the Federal share to 85 percent, for projects which utilize alternative and innovative waste treatment processes.
Sections 9, 12, 13, 15, 16, 17, 21, 28, 37, 38, 39, 49, 60, and 72 of the conference report expand the treatment works construction grant program utilization of innovative and alternative waste water treatment processes and techniques. These sections generally follow a series of provisions in H.R. 9464. They are intended to result in a major reorientation of the construction grant program.
The 1972 amendments redirected the water pollution program to municipal waste treatment alternatives which would lead to the confined and contained disposal of wastes so that pollutants would not migrate to cause environmental pollution. Little was done to achieve this result. The purpose of this and related amendments is to underscore that 1972 intent by providing supplemental assistance for innovative and alternative waste treatment processes which might not otherwise be cost effective.
The conferees intend that EPA shall require consideration and application of demonstrated alternatives which meet the objectives of section 201 funded from the regular grant program. This supplemental assistance program is intended to force technology so that new and better alternatives which have not been demonstrated can become available. As they are available, funding should come from the regular grant program.
The administration has been provided all of the legislative tools needed to require the utilization of such innovative and alternative waste water treatment processes and techniques.
Care should be taken in the evaluation of grant applications to avoid unnecessary studies, investigations, or analyses which are irrelevant to, and unaffected by, application of new technology, recycle, reuse, or land treatment.
The provisions for increased grants for publicly owned treatment works utilizing innovative and alternative technology has been specifically phased in to avoid delays in ongoing step 1 and step 2 projects. The Administrator is cautioned in promulgation of regulations and implementation of these sections not to cause delays in the construction grant program. The environmental benefits to be realized from these sections on innovative and alternative technology should not be vitiated by such delays.
While treatment works construction grant funds are authorized for 5 years by section 30 of this act, it is to be noted that section 17 provides for increased grants for treatment works using alternative and innovative technology for 3 years only. This provision is not applicable to grants made from funds authorized from either the first or the last year for which grant funds are available. It is expected that Congress will evaluate the program at the same time Congress considers an allotment formula for the grant funds authorized for fiscal year 1982.
While funds to increase construction grants to 85 percent are made available only for fiscal years 1979, 1980, and 1981, it is important to recognize that while 2 percent of the construction grant funds are set aside for fiscal years 1979 and 1980 to carry out this program, 3 percent is set aside for fiscal year 1981. This underscores the intent of Congress to increase the number of projects utilizing innovative and alternative technology. During fiscal year 1981, over 25 percent of new grant awards should utilize such technology.
However, nothing in this section is intended to reduce the current emphasis on funding cost effective alternatives to conventional treatment under the basic grant program.
It is not intended that conventional processes including advanced biological treatment processes or advanced waste treatment systems utilizing distillation, nitrification, and denitrification or breakpoint chlorination be eligible for the increased Federal share. In addition to improved methods for conventional treatment, innovative technology should include such techniques as nutrient utilization and reclaiming or recycling of water.
The Administrator is expected to coordinate promptly with the other heads of departments, agencies, or instrumentalities of the Federal Government which have jurisdiction over any property or facility utilizing federally owned waste water facilities. The Federal Government is expected to be a leader in the use of alternative and innovative treatment processes and techniques. The cost effectiveness provision of section 60 is a mechanism for forcing the use of such processes and techniques. Section 60 allows the Administrator to waive the application of such processes and techniques where he determines it to be in the public interest. This authority is not intended to be a means for negating the 15 percent cost effectiveness provision. The Administrator is not expected to waive this requirement unless there is a clear showing that ongoing projects would be delayed or that important public interest considerations cannot be met.
Several criteria should be relied upon to evaluate the innovative character of technology. The criteria include cost reduction, improved reliability, energy conservation or reclamation, recycling or reclamation of effluents, sludges or beneficial wastewater constituents, better management of toxic materials, and environmental benefits. Where technology does not produce benefits in line with the criteria, the Administrator should not consider the technology to be innovative or alternative under these provisions.
A certain percentage of the State's allotment is set aside for 85 percent grants for innovative and alternative technology. Those moneys are not exclusive of, but can overlap, the 4 percent set aside for alternative or unconventional systems for small communities.
INDIVIDUAL SYSTEMS
The authority under this provision is to be exercised in accordance with cost effectiveness guidelines for the construction grants program. Alternatives including septic tanks and other onsite systems, small systems serving cluster households, pressure and vacuum sewers and the like should be compared to determine relative costs and environmental impacts of each. The cost effective solution should be chosen.
Collection of moneys under this provision for commercial user cost recovery should be carried out in a manner similar to the collection of moneys for industrial cost recovery, subject to all the requirements of section 204, as amended by other provisions of the new amendments. There is, however, no moratorium of this requirement during the period of the industrial cost recovery study, nor does the 25,000 gallon-per-day exemption apply to commercial users of projects assisted under this authority.
USER CHARGES
The compromise on user charges is, in many respects, similar to the Senate-passed bill. It requires each industrial and commercial user of federally assisted waste treatment services to pay its proportionate share of the cost of operation and maintenance of waste treatment. Unlike the Senate bill which required all users to pay operation and maintenance costs in proportion to actual use, this bill has an exception. In those cases in which existing systems on date of enactment already have systems of charges for operation and maintenance costs based on the use of dedicated levies against property values, that system can continue to be applied so long as residential users, as a class, pay no more than the cost of operation and maintenance attributable to that class of use.
The grant recipient must show that this kind of class proportionality exists. Among all classes of users, it must also show that each individual nonresidential user, unless exempt by regulation as a small user, pay its proportionate share. The grant recipient must show that major nonresidential users actually meter their system input as to quantity, strength and constituents of the waste contributed.
The need for these amendments would have been lessened had the Administrator not adopted a policy which permitted partial grants for communities which refused to adopt user charge systems. The Agency's initial determination to make a grant pending adoption of the system was wise. The later determination to make subsequent grants, withholding only a portion for failure to comply, was not. The Administrator is expected to cease to make grants of any kind, to any grant recipient which has not, by the end of the current fiscal year, adopted an approvable user charge system for all its sources. And the Administrator must continue to withhold the remainder of any grant to any community until the modified user charge system is implemented.
The bill contains a Senate provision which indicates that metering is not required for residential users in order to determine exact proportionality. This means that metering is required for nonresidential users. And, it includes a recognition that, in the past and in the future, ad valorem taxes can be the basis for user charge system if such taxes meet the test of proportionality for each user. It is recognized that this will be difficult because property values bear little, if any, relationship to sewage treatment needs. However, if the Administrator is satisfied that proportionality among individual residential or exempt nonresidential users does in fact exist, an ad valorem tax system can be approved.
Finally, the conference agreement includes a requirement that each recipient of waste treatment services be notified as to the cost of the service received. The purpose of this is twofold: First, to create a public understanding of the cost of providing adequate water pollution control; and second, to stimulate conservation.
The conference agreement stresses water conservation as an important public value. This is one reason the Senate insisted on maintaining that where there is a direct relationship between cost and use, there will be the greatest incentive for water conservation.
Finally, the conference compromise keeps in place a basic objective of the 1972 act: the achievement of utility-like management of publicly-owned treatment systems. It is important that these municipal waste treatment systems operate on a utility-like basis. They must begin to develop the capacity to finance their own expansion. They must be self-financing. The Federal Government cannot be forever expected to meet the needs of growing communities. This act does not provide funds for new growth, and it is not likely Congress will provide funds for this purpose in the future.
The 1977 amendments, like the 1972 act, are designed to deal primarily with the backlog of waste treatment needs. It is not intended to deal with the growth needs of communities. Those waste treatment systems which are operating on a utility basis will have the capacity to finance their own growth. Those which are operating on an already overburdened property tax basis will be under constant pressure to seek subsidies for future expansion as the property tax payers reject increased levies to pay the cost of new development.
In this vein, it should be noted that any system which inequitably distributes operation and maintenance costs among users, in either the commercial or industrial class, or as between those classes and residential users, cannot be approved.
The user charge system should apply to charge back selectively to a source or sources discharging into a publicly-owned treatment works those increased costs in the management of either effluent or sludge caused by the discharge of any toxic pollutant by such source or sources into such publicly-owned treatment works. Thus, for instance, if an identifiable source discharges a toxic pollutant or pollutants which have the effect of preventing a low cost sludge management program such as land spreading and requiring incineration of such sludge, the user charge system shall charge back against the responsible discharge sources the increment of costs over the land spreading systems to carry out such incineration.
The Administrator is authorized to identify "small nonresidential users" which can be exempt from the actual user charge requirement. This is intended to provide a mechanism for eliminating small dischargers from the cost of establishing and collecting user charges. The conference agreement anticipates that these will be commercial and small industrial establishments which contribute only domestic toilet and kitchen waste to the system — or very small quantities of the equivalent of domestic waste.
The Administrator is expected to promulgate these regulations on a categorical rather than volumetric basis in order to avoid forcing each system to pay the cost of making a determination of whether it falls within that category. Small nonresidential users which could be excluded from user charge requirements by regulation are those with smaller flows of essentially domestic waste. Examples would be warehouses, small grocery and dry goods stores, small laundries, museums, and small hotels and motels. Large commercial establishments (e.g., urban trade centers) or "wet commercial establishments" (e.g., photo processing) would require separate metering. Certainly, service stations, repair shops, and other kinds of establishments which have the potential for contributing oil or metals to the system would not. Also, small metal manufacturing shops, printing operations and other nonresidential users which use toxic materials would not be exempt.
It should also be noted that any class or category of industrial or commercial user which has a volume and strength waste load which in no way correlates to proportionate costs of treatment under an ad valorem tax system, either because of the character of the waste or because of low waste flow relative to the ad valorem tax, should not be determined to be a "small nonresidential" user by the Administrator.
No portion of a grant which has been withheld for noncompliance with this section can be made available unless the Administrator determines that each new requirement of these amendments was complied with prior to enactment.
All recipients being held at the 80 percent payment level as of enactment of this provision must establish an approved user charge system within 1 year of enactment of this provision. Likewise those who apply for grants within 1 year of enactment of this provision must establish an approved user charge system by the end of that year. In both cases the Administrator is to terminate grants of those who fail to establish approved user charge systems by the end of the year. During the one year period it is expected that full payment will be made on grants.
Beginning one year after enactment of this provision, no applicant which has received a grant and has not established an approved user charge system shall receive a substantial grant.
If a system in general fulfills the requirements of the provision as of enactment of the provision, adjustments can be made to the system within the year to make it comply strictly with the requirements of the provision. However, an ad valorem system must be dedicated on enactment for an ad valorem system to fulfill the user charge requirement.
Adjustments can be made within a reasonable time (no more than one year) to achieve full compliance with the requirement of the amendment if the grantee's revenue system in general meets these requirements. Clearly it is intended for example that grantees have an opportunity to adjust their charges to major industries and other large nonresidential users to comply with the proportionality of the requirements of the new amendments. Adjustments may also be necessary to comply with other details, including the requirements for proportionality among user classes, but dedication of revenues must exist on enactment.
INDUSTRIAL COST RECOVERY
The Senate conferees acceded to the House proposal to declare a moratorium on the collection of those costs of treating industrial wastes which under existing law are required to be returned to the Treasury. During the moratorium, a study is to be conducted by EPA of the implications of industrial cost recovery. The study is to be completed within 1 year, with an additional 6 months for Congress to consider the results of that study and take any appropriate action.
This moratorium will accomplish two purposes. First, it will free up any withheld portions of grants to the extent that portions of grants have been withheld solely for the purpose of developing an industrial cost recovery system. (The bill does not authorize the payment of withheld grants to applicants which have not adopted approvable user charge system.)
The fact that grants will no longer be withheld and that repayment of 50 percent of the cost of treating industrial wastes will be delayed for 18 months in no way removes the requirement that the grant recipient establish a system of industrial cost recovery. The amendment only delays payment to the Treasury (and possibly recovery to the grant recipient if he so desires) for the period of review and 6 month congressional consideration of any findings. At the end of the 18 month period, if Congress has not acted, the community must immediately begin to repay industrial costs, which costs can be spread out over the remaining useful life of the system. In other words, there will be no lump sum payment requirement.
The conferees did agree that any industrial user which contributed the sanitary waste equivalent of 25,000 gallons or less on a daily basis would not be required to repay the Federal share of the grant attributable to treatment for that source. This decision relates in part to the fact that these kinds of industrial or commercial users would ordinarily not construct a separate waste treatment facility — that they are captive to a municipal system. As such, no inequity occurs among communities by the fact that the Federal Government is subsidizing treatment of these users' waste.
It is recognized that the study performed by the Agency may well show that the 25,000 gallons of sanitary waste equivalent is too high, and that the Congress should reduce that amount in order to assure more efficient cost recovery. But no user of a system which contributes the equivalent of 25,000 gallons of sanitary waste or less per day would in any way be liable for any costs occurred prior to a subsequent change in the law.
Also, it is important to note that the 25,000 gallon exemption applies only to the equivalent of sanitary waste and would not be available to any source of waste regardless of quantity which contributes wastes which are toxic or which pass through, interfere with, or contaminate the sludge of any municipal system.
Among the industrial costs which would be required to be recovered would be any costs associated with any federally assisted sludge disposal system. The operation and maintenance of those systems would also be subject to the user charge provision. Both user charges and industrial cost recovery would necessarily reflect any costs incurred by the system for sludge disposal solely because of the failure of an industrial user to remove pollutants which would otherwise contaminate, the sludge, thus making sludge management more expensive.
The Environmental Protection Agency is expected to initiate the study mandated by this amendment as quickly as possible. Among the issues the administrator should address in this review is the exemption in EPA's current regulations of "dry industry" from the industrial cost recovery requirements. The Administrator should look at the size of dry industry sources which are exempt from industrial cost recovery and their contribution to municipal systems.
The General Accounting Office is currently reviewing EPA's implementation of the industrial cost recovery provision of existing law. The conferees expect that this review be completed on an expeditious basis so that it can be made available to the Administrator in ample time to be of use for the study required by this act. The results of this GAO review should be helpful to EPA's analysis of the current program and provide a basis for EPA's study.
Existing law is specific in listing the type. of costs which are to be included in the "cost of construction" for the purpose of industrial cost recovery. This definition has not been changed. The costs of developing a system for industrial cost recovery should be included as part of those construction costs which the industrial contributors may repay. System development costs would be included under the definition of "construction" in section 212 of the act and are therefore eligible for a 75 percent Federal grant. Such development costs then should be included as part of the cost of construction which a participating industry would be required to repay. Failure to include development costs of industrial cost recovery systems for small grants often results in situations where costs of managing the industrial cost recovery system exceed the revenues derived.
This amendment specifically provides for the inclusion of administrative costs as recoverable costs for the purpose of industrial cost recovery. This amplifies current law which would provide for the recovery of development and other costs which were paid for by a 75 percent Federal grant.
STATE MANAGEMENT ASSISTANCE
The conference agreement adopts the Senate amendment which authorizes the Environmental Protection Agency to assist financially the States to whom he has authorized certain management functions including the construction grant program, the 402 program, the 208 program, and small community grants. These funds would be reserved from the State's yearly allotment of construction grant program's funds. In no case would the funds exceed 2 percent and no State would be eligible for less than $400,000.
The policy of authorizing the States to manage the construction grant program is being implemented by the Environmental Protection Agency under existing statutory authority. California already manages the full program from approval of design to approval of selection among bidders through disbursement of funds. Twenty-eight States have taken over the permit program, and States are carrying on statewide 208 planning. Other States conduct certain portions of the review process in the construction grant program. Because of State resource constraints, they need funds to perform these functions on behalf of the Federal Government.
The bill authorizes the Administrator to distribute up to 2 percent of the grant funds in proportion to the functions of the construction grant program that the State is conducting, whether or not the State has the 402 permit program, whether or not the State manages the permit program, whether or not the State has a statewide 208 program, and whether or not the State has the capability to manage construction grants to small communities. Each of these functions requires manpower and expertise at the State level, and Federal resources should be available in proportion to the amount of the functions conducted and therefore the needs of the program.
This provision is similar to a request by the administration that the bill authorize the Administrator to distribute the funds according to the above criteria.
The purpose of certifying the States and providing commensurate resources is to reduce duplication of effort by State and Federal levels of government, a major complaint in the program; to avoid unnecessary enlargement in the number of Federal personnel needed for program implementation; and to carry out the policy in Public Law 92-500 "to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution."
The Administrator is expected to only make available the full amount when the State has assumed full capabilities. When a State has taken on their full responsibilities, all the funds should not be available unless the State can justify that level of funding.
Sums reserved under this amendment are available for making the type of grants just described for the same period as sums are available from an allotment under subsection (b) of this section, and any grant shall be available for obligation only during that period. Reserve funds that are not obligated by the end of the period for which they are available will be added to the amounts last allotted to a State under section 205 and would be immediately available for obligation in the same manner and to the same extent as such last allotment.
Any reserve funds reverting to a State's general allotment will remain available for a reasonable period of time as determined by the Administrator through regulation before reallotment. In a similar vein, it should be noted that in those cases where a State is granted less than the entire 2 percent of its allotment funds for the purposes of this section, the unobligated funds will revert to the State's general allotment funds as soon as the Administrator determines what percent to grant to any State in any year.
Further, the intent of this provision is that the sums not be used to reduce the level of Federal or State expenditures to administer water pollution control programs as provided in section 106 of the act. However, a grant under this provision may require the reprogramming of those amounts of Federal and State funds earmarked for management of municipal facilities construction into other State program elements such as enforcement and monitoring.
Paragraph (d) (2) of this subsection provides that a State assisting the Environment Protection Agency in the implementation of its responsibilities under sections 201, 203, 204, and 212 may receive grants to cover the reasonable cost of that assistance. The activities include infiltration studies, review of preliminary plans to evaluate the size and scope of the project, review of operation and maintenance programs, review of plans and specifications, determination of consistency with section 208 plans and review of priorities.
Technical assistance and information for grantees relate to the activities outlined above.
The Administrator shall determine the size of the grant made to a State based on an assessment of the State's capability to assist with the activities outlined above. The assessment should take into account factors such as the State's capability and performance in reviewing facility plans and design plans and specifications, capacity to provide technical assistance, and availability and adequacy of necessary technically and professionally qualified personnel and other necessary resources.
Further, it is understood that no grant would be made under this provision until the State has demonstrated a commitment to acquiring the capability to manage grant awards to small communities. This would include acquiring the capability to be the contract agency for any engineering design or construction agreements. Most important, the States would have acquired resources to review plans and advise small communities on cost effective alternatives.
The objective of this policy is to effect a more efficient means for expediting the municipal construction program, the scope and complexity of which has so increased as to make its full implementation at the local level achievable only through reliance on private contractors whose primary objectives may not be minimizing local short and long term costs while maximizing environmental benefits.
Two other primary responsibilities in existing law which many States have assumed are the permit program and implementation of statewide section 208 management plans and programs.
Management of the permit program is a difficult responsibility. It requires issuance of permits that are consistent with applicable effluent requirements and water quality standards, review of monitoring reports, and necessary enforcement actions. Each of these activities is resource intensive and requires manpower.
States are finally beginning to assume their responsibilities under the section 208 program. These activities also are resource intensive. A State must integrate the section 303 water quality information, develop best management practices for non-point sources, develop plans for siting for industrial and municipal facilities, and review industrial permits and municipal plants to determine their consistency with the 208 effort.
The Congress expects the State to assume more and more of the responsibilities of the water pollution program. It has therefore fashioned a program which increase Federal resources available as responsibilities increase.
GRANT ELIGIBLE CATEGORIES
The conference substitute adds two new subsections to section 211 of the act. The first provides that if population density is used as a test of eligibility of a collector sewer for assistance, population density shall only be used for the purpose of evaluating alternatives and in determining the needs for the collection system in relation to ground or surface water quality impact. The second provides that no grant may be made under title II from funds for fiscal years 1978 through 1982 for treatment works for control of pollutant discharges from separate storm sewer systems.
The conference agreement deletes the Senate provision which amends section 211 of existing law relating to major sewer rehabilitation and collector sewer eligibility. This leaves in place existing law. Collector sewer eligibility is thus limited to communities in existence on October 18, 1972, with sufficient existing or planned capacity adequate to treat such collected sewage.
By its actions, the conferees reaffirmed the intent of the 1972 act. The purpose of these funds is not to finance the future growth needs of the United States; rather, the purpose is to eliminate the backlog of waste treatment needs with a limited provision for increased capacity to recognize the cost effectiveness factors and to achieve a balance between the pressures for economic development and the need for environmental improvement.
A community may be a geographic or jurisdictional area less than the municipality that applies for the grant. The determination of what is a community is based in part on occupied residences in sufficient numbers to justify construction of collector sewers. An existing community for the purposes of section 211 is those residences occupied as of the date of enactment of the 1972 act.
When evaluating the eligibility of collector sewer systems, the Administrator shall bear in mind the preference given to alternative systems for sparsely populated areas by other provisions of the act.
PRIORITIES
The conferees were disturbed by the fact that there seemed to be little relationship between the enforceable requirements of the act and the distribution of public funds for this program.
Again, to underscore that the purpose of the program is to reduce the backlog of waste treatment facilities needs and not to finance the requirements of future growth, the conference agreement specifically requires that State priority lists reflect the enforceable requirements of the act — the deadlines for municipalities and for those industries which will discharge through those municipalities. Any project on the State list which does not comply with this requirement will be removed, and the list shall be revised accordingly.
The Administrator may not approve a grant award for a facility designed to meet new growth. He may only approve a grant for that portion of any facility which meets the specific criteria of this act. Nor may the Administrator approve a grant for a project primarily designed to deliver more waste to a receiving water.
The availability of a 75 percent grant has encouraged the construction of collectors. For example, a town in Wisconsin installed an entirely new collection and treatment system to replace existing septic tanks and ended up spending $500 per household per year for debt service and operation and maintenance. A similar situation in Maine has produced costs of $220 per household per year for debt service and operation and maintenance. In a county neighboring Washington, D.C., the State and the county had proposed to construct a $400 million advanced waste treatment facility whose capacity was at least four times that needed by the existing population. Meanwhile, 43 other cities in that same State which would have gone without funds to construct needed secondary treatment facilities are potentially subject to abatement action for failure to comply with minimum treatment standards.
The sections of the act setting out enforceable requirements include sections 201, 208, 301, 309, 402, and 405. These requirements can normally be met by projects for construction of treatment plants, correction of excessive infiltration and inflow into the sewer system, and/or control of pollutant discharges from combined sewer overflows and bypasses. Construction of collector sewers, interceptor sewers and major rehabilitation of sewers (except where necessary to correct excessive infiltration and inflow) ordinarily would not be necessary to meet the enforceable requirements of the law.
The States are expected to continue to give priority to projects within each category of projects on the basis of the severity of the pollution problem to be corrected and related factors such as the size of existing population to be served.
MODIFICATION OF SECONDARY TREATMENT REQUIREMENT
The Senate-passed bill contained a provision permitting a modification of the secondary treatment requirement for deep ocean municipal discharges. The conference agreement is identical to the Senate-passed bill.
Some communities located along the Nation's coasts have argued that there is no need to require secondary treatment for municipalities which discharge into ocean waters. The Congress determined, after much analysis, that there should be a mechanism by which communities making this argument can test their case in the administrative process. No such contention was made for freshwater discharges. There seems to be general acceptance of the need to achieve a high degree of municipal waste treatment for discharges into the Nation's river, lakes, and streams. But with respect to marine discharges, this bill provides a limited exception.
The Administrator may, on a case-by-case basis, modify the requirements of secondary treatment for marine discharges from publicly owned waste treatment plants where specific conditions are met. Water quality standards must exist for the waters into which the discharge is made and the modification must be limited to pollutants which are covered by those water quality standards. In this case, those pollutants are also limited by the parameters which define secondary treatment. Thus, a waiver could be granted only for the specific effluent parameters which are included in the definition of secondary treatment under existing law. The Administrator would be required to establish an enforceable effluent limit for such works adequate to assure maintenance of ocean ecosystems.
Where applicable water quality standards exist specific to a pollutant in a discharge, the municipal source can apply for a waiver from the secondary requirement for that pollutant if a showing is made that the applicable water quality standard will be maintained, there will not be interference with the national water quality standard for that pollutant, if indirect sources which discharge into that system meet all applicable pretreatment requirements, if no other point or non-point source will be required to meet additional requirements because of a modification of the secondary treatment requirement, and if the volume of discharge of the pollutant will not increase beyond that specified in the modified permit for the period during which the waiver is granted.
This provision for modification would be available only to systems which are providing waste treatment services to users which contribute primarily domestic type wastes or which have sufficient control over industrial input so as to prohibit any 307 type pollutants from entering the system.
Any complex system which is treating wastes for a myriad of industrial and commercial establishments within a metropolitan area could never meet the requirements of this modification procedure unless the control of industrial input was thorough enough to assure that no toxics or other incompatible pollutants pass directly into the ocean environment.
Primary treatment does not deal with these kinds of constituents. Therefore, their presence as an input into municipal waste streams is a prima facie indication that the secondary treatment modification provision is not applicable.
Additionally, the discharger must be able to establish that there is no interference with the attainment and maintenance of water quality which will support a balanced indigenous population of fish, shellfish, and wildlife in all stages of their life cycle. This burden is difficult, but in most cases these outfalls have been in place for many years. Comparative ecosystems exist in nearby ocean waters. Evidence should be available and furnished as a part of an application to determine whether or not the ecosystems which exists in the areas of these outfalls are identical to those which live in unpolluted environments.
There was a great deal of discussion of the term "indigenous" as used in the phrase "balanced indigenous population of fish, shellfish and wildlife." The legislative history reflects an understanding of what is required by this national water quality standard in its application to specific receiving waters.
As in 1972, it was intended that the interim water quality standard be that condition of aquatic life which existed in the absence of pollution. There is no question that man's activities have radically altered receiving water ecosystems in this country and that alteration is continuing at an accelerated pace in many areas. Restoration of aquatic ecosystems which existed prior to the introduction of pollution from man's activities is an important element of the restoration and maintenance of the biological, physical, and chemical integrity of receiving waters. It is an essential aspect of assuring that future generations will have an adequate supply of basic life support resources.
The concept of indigenous does not anticipate the removal of structures from waterways. It does not anticipate the existence of ecosystems which existed in the absence of those structures. But it does fully anticipate the analysis of aquatic populations in terms of man's activities prior to, and subsequent to, pollution.
The secondary treatment modification is not intended to engender the delays created by prior modification provisions such as section 316(a). Procedures are to be as expeditious as practicable. To be approved, applications for modifications must be filed within the time limit provided and must, on their face, provide sufficient justification for granting the application. The burden of demonstrating entitlement to a modification is solely on the application and must be met in the application.
The requirements of section 403, which the Administrator should promulgate immediately, must be met as a condition of the granting of a modification under this provision. It is expected that in evaluating modification applications, the Administrator will pay particular attention to any combined sewer or storm sewer overflows or limitations in treatment plant capacity which result in periodic bypasses. A modification under this provision shall be effective for the full term of the permit.
Mr. President, I ask unanimous consent that a letter I have received from Thomas C. Jorling, Assistant Administrator of the Environmental Protection Agency for Water and Hazardous Materials, on the secondary treatment modification provision be printed in the RECORD at this point.
There being no objection, the letter was ordered to be printed in the RECORD, as follows:
U.S. ENVIRONMENTAL PROTECTION AGENCY,
Washington, D.C.,
December 7, 1977.
Hon. EDMUND S. MUSKIE
Chairman,
House-Senate Conference Committee on Amendments to the Federal Water Pollution Control Act,
U.S. Senate,
Washington, D.C.
Dear Mr. Chairman and Members of the Conference: as you know, there were some unfortunate delays in the EPA implementation of important sections of the Federal Water Pollution Control Act Amendments of 1972. To some extent these delays were due to confusion surrounding the interpretation of the complicated new sections added to the law by those amendments. To avoid similar problems in implementing the 1977 amendments, I am taking the liberty of addressing one of the major amendments of the bills before Congress — that covering requirements for municipal outfalls which discharge into deep marine waters — and stating EPA's interpretation of that proposal.
We interpret the provision for modification of secondary treatment requirements for municipal outfalls to limit its application to very special circumstances: those few existing outfalls into very deep waters or very high tide fluctuation areas. Only under these unusual temperature and high energy conditions can conditions exist which allow waters to receive oxygen-demanding wastes without effect on indigenous populations.
In addition, when EPA determines whether modified discharges will interfere with the indigenous population, etc., of an area, we intend to consider the effects of such discharges over the life expectancy of any project that could result from such modification. In other words, our modification decision, even though any modification will be limited to 5 years, would be made on the basis of long term effects, since such chronic effects are of greatest concern in protecting the integrity of the oceans.
The Conference's adoption of the proposed definitions and criteria restricts the possibility of modification under this provision to a limited number of areas: California (list enclosed), San Juan, American Samoa, the Virgin Islands, Honolulu, Seattle, and Anchorage. I would note that this listing does not in any way prejudge the question of whether outfalls in these areas would, in fact, qualify under this section.
Adoption of another, broader set of criteria — which in our opinion the Conferees wisely did not accept — would prompt many municipalities to seek modification of secondary treatment requirements under this provision simply to delay compliance with the law. This would create an extraordinary drain on Agency resources, and effectively suspend secondary treatment requirements for an indeterminate period. Furthermore, because of our limited understanding of the effects of effluents on oceans, decisions would necessarily be highly judgmental and would, of course, be appealable in the courts. The net effect of this process would be a return to the requirement of proof of harm to receiving waters before controls can be required.
Several additional points should be made with regard to our interpretation of the proposed provisions:
1. Modification of secondary treatment requirements is allowed only where applicable water quality standards exist. We will interpret that language, of course, as applying only to standards for the discharge of conventional pollutants regulated by the secondary treatment definition. We will vigorously apply controls on other pollutants, especially toxics, in these circumstances.
2. Our preliminary review indicates there are few ocean outfalls for which any evidence has been accumulated to support an application for modification of the requirements for secondary treatment with regard to biochemical oxygen demand and total suspended solids. Although there are studies that could have the effect of justifying discharges of a higher level of oxygen-demanding substances, we are suspicious of these studies as they relate to discharges of other pollutants associated with municipal discharges. We interpret the action of the conferees to reemphasize the overall objectives of P. L. 92-500 applicable to municipalities.
3. We intend to apply the requirement that the burden of proof be placed on an applicant to show no interference with indigenous population, and we will assure that the criteria developed under section 403 are satisfied as well.
4. Senate provision (e) (6), which in our opinion the conferees have wisely retained, ties modification to a requirement that a discharge source has acted to eliminate the entrance of toxics into the municipal system. This will permit the recycling and reclamation of water and the confining and containment of pollutants in the future. We will interpret this provision to require facilities planning during the initial time extension to achieve those objectives.
5. We endorse the concept of limiting any modification to flows existing on the date of issuance of such modification. Only in this way will the municipality be induced to do the type of planning and implementation which will achieve the objectives of P. L. 92-500.
It should be noted, Mr. Chairman, that while much attention has been focused on the dumping of sewage sludge into the oceans, which the Congress has voted to terminate by 1981 (PL. 95-153), a comparable or more adverse impact on ocean waters is caused by the discharge of sewage effluents into the ocean through outfalls. We know little about the effect of continued release of persistent pollutants to the oceans, but we know that oceans are vital to the biosphere that supports all life. Prudence dictates that we apply controls as rigorously as possible in order to protect the oceans. Therefore, any modification of pollution controls applicable to the oceans occasioned by short term needs should be, and, as we interpret the conference agreement, is quite limited in scope.
Sincerely yours,
THOMAS C. JORLING, Assistant Administrator.
LIST OF OCEAN OUTFALLS TO TERRITORIAL SEAS AND BEYOND
(California)
Crescent City, Westport, Mendocino, Mendocino No. 2, Bolinas, San Francisco (Richmond Sunset), North San Mateo, Pacifica, Montaro, Granada.
Half Moon Bay, Davenport, Santa Cruz, East Cliff, Aptor, Watsonville, Marina, Seaside, Pacific Grove, Monterey.
Carmel, San Simeon, Morro Bay, Shell Beach, Pismo Beach, Avila, South San Luis, Boleta, Santa Barbara, Montecito.
Summerland, Carpinteria, San Buenaventura, Oxnard, Port Hueneme, City of Los Angeles, City of Los Angeles (Terminal Island) Los Angeles County Sanitation District, Avalon, Sunset Beach.
Orange County Sanitation District, Laguna Beach, South Laguna, Dana Point, San Clemente, Oceanside, Encinitas, Cardiff, San Diego, Carlsbad Buena Vista.
Mr. MUSKIE. Mr. President, with regard to municipal extensions, the conferees approved a case-by-case extension for municipalities which were unable to meet the July 1, 1977, requirements, in part as a result of recognition of the impact of impounded funds. These extensions are available only to municipalities which would require substantial construction and for which Federal funds were not available, if they agree to establish and maintain an interim compliance schedule.
Of 12,500 treatment plants now in operation, 4,150 or one-third meet the 1977 requirements of Public Law 92-500. These plants serve about 52 million persons. Plants that do not meet the deadline serve about 92 million persons. EPA has provided the following estimates as to ultimate municipal compliance:
[Table omitted]
Although there is no precise estimate of the number of present industrial hookups to municipal wastewater systems, roughly 50,000 industries, most of which are relatively small, is an EPA approximation. Based on a survey this year of major industrial dischargers in the paper industry, the total number of major industries — flow greater than 50,000 gallons per day — in all categories desiring hookups to municipal systems would be in the order of 70 to 100. There is no estimate of potential hookups for the small industries, but EPA believes that several thousand such industries may find hookups to be advantageous.
The purpose of this amendment is to allow the permitting agency to extend the date of compliance for those treatment works, and industries with contracts to tie in to treatment works, which have made all possible good faith efforts to meet the July 1, 1977, deadline and whose failure to do so is primarily the fault of the Federal Government.
For those industrial and municipal sources which are unable to meet this statutory deadline due to their unwillingness to take appropriate actions and spend necessary amounts of money at the earliest possible time, the conferees intend that no extension be granted and that enforcement actions be undertaken under section 309.
In determining whether or not to grant the extension, the permitting agency must consider whether the delays in construction were due to EPA's inability to make available appropriate construction grant moneys promptly or whether the fault lies with the municipalities' unwillingness to move as fast as possible with all available resources toward the achievement of the requirements of secondary treatment.
Subsection 301(i) (2) (A) (iii) would allow an extension in a permit to an industrial discharger proposing to connect to a municipal treatment system if "engineering or architectural plans or working drawings made before July 1, 1977 for a publicly owned treatment works" indicate such connection and other criteria of the new subsection are met. This test is intended to establish that
plans or drawings to discharge to a municipal treatment system were in existence prior to July 1, 1977, and were not concocted after that date merely to frustrate enforcement of the act's requirements. Accordingly, plans or drawings that have been discarded or superseded or submitted in a grant application that was determined ineligible should not be considered sufficient to support an extension. To support an extension, such plans or drawings generally should be those accompanying an eligible grant application.
PROCEDURES FOR MODIFICATION
This amendment establishes a procedure for filing application for a modification of the requirements of the act for secondary treatment for publicly owned treatment works which discharge into marine waters, and for a modification of the best available technology requirement for non-conventional pollutants.
The amendment requires that any publicly owned system or industrial discharger which wants a modification must file his application to that effect with the Administrator within 9 months of enactment of the 1977 amendments (or in the event that EPA has not promulgated effluent guidelines for the pollutant in question, within 9 months of such a promulgation).
The amendment makes clear that the mere application for a modification does not stay any requirement to achieve BAT by the applicant, unless the Administrator determines that there is a substantial likelihood that the applicant will qualify for the modification on the merits of his application. In the case of a modification of the best available technology requirement for a non-conventional pollutant, the Administrator may condition a stay on the filing of a bond or other appropriate security, such as a line of credit, which will assure timely compliance with the requirements for which a modification is sought.
This provision is intended to discourage the use of the modification procedures for delay by dischargers which have no reasonable chance of qualifying for a modification. Otherwise, the exemptions would provide an opportunity to "buy time" and result in failure to meet the deadlines in the act.
Although numerous changes have been made to sections 301 and 304, effluent limitations and guidelines developed pursuant to these sections remain technology based standards. Except to the extent expressly provided in the statute, such limitations cannot be varied or modified due to the nature or quality of receiving waters.
Whenever judicial review is sought of the Administrator's action with regard to any modification to or waiver or variance from an effluent limitation, it is expected that such review will be in the courts of appeals pursuant to section 509.
INNOVATIVE TECHNOLOGY
States with approved permit programs under section 402 of the act are to make determinations of whether a claim of innovative technology supports an extension in consultation with and pursuant to guidance from the Administrator. This does not supersede, of course, the Administrator's ability under section 402(d) of the act to object to a permit proposed to be issued by such a State on the basis that an extension contained in the permit was improvidently granted by the State under the new section 301 (k).
The Administrator is expected to approve as innovative techniques those systems which provide for productive use of nutrients and reclaiming and recycling water.
BEST MANAGEMENT PRACTICES FOR INDUSTRY
The amendment to section 304, adding a new subsection (e), authorizes the Administrator to publish regulations for ancillary industrial activities of point source dischargers which contribute pollutants designated as toxic under section 307 to navigable waters. For these ancillary activities, the regulations will specify treatment requirements, operating procedures, and other management practices by classes and categories of point source dischargers. Once promulgated, the requirements, procedures, and practices established in the regulations must be included in section 402 permits where applicable, being considered as requirements of sections 301, 302, 306, 307, or 403. Of course, prior to promulgation, the same type of controls could be imposed in permits through case-by-case determinations under section 402 (a)(1).
This amendment closes a gap in the current regulation of toxic pollutants through the permit program. Under the Federal Water Pollution Control Act of 1972, management and operating practices to abate the discharge of pollutants may only be imposed in permits indirectly; for example, through sections 402(a) (2), 401(d), 208(e), or 301(b) (1) (C). Where such direct authority is unavailable, the result may be control of only a part of the total "toxic pollutant picture'' for a given industrial site or process. Limiting pollution control in this manner may often serve to undermine overall water pollution abatement efforts. For example, wastes containing toxic pollutants may be removed from a point source discharge by treatment, only to cause another form of water pollution problem due to improper onsite management, storage, or disposal practices.
Under the terms of the amendment, direct regulation of the totality of a toxic pollutant problem through management requirements in permits would be available. Increased water pollution control would be provided for such concerns as site runoff, spillage or leaks, lagoons, sludge or waste disposal, and drainage from raw materials storage, as they relate to the processes of an industrial point source discharger.
The following example serves to illustrate the possible use of the amendment's provisions for control of ancillary industrial activities. In the case of an industrial plant that stores materials in open areas, the permit, in addition to specifying effluent limitations for the point source discharge, could prescribe procedures for the protection of materials from rainfall and runoff, or the collection and treatment of such runoff. The same permit could prescribe methods for the handling and onsite transport of raw materials, waste sludges, lagoons, or byproducts to minimize spillage or accidental release of toxic pollutants that could flow or be washed into navigable waters.
Some recent environmentally devastating incidents underscore the need for this authority :
The carbon tetrachloride spill into the Ohio River was the result of an improper storage practice. Had proper storage practices been specified, that spill might have been avoided.
The toxic chemical mirex from the Hooker Plant in Niagara, which contaminated Lake Erie, was not an intentional discharge. It was a leak. Had the Administrator specified practices to avoid leaks, that also could have been avoided.
The runoff of kepone into the James River from outdoor storage areas could have been prevented.
Effective use of this authority should reduce significantly a major and potentially disastrous source of serious water pollution. Wherever possible the Environmental Protection Agency should specify alternative practices or control measures that will achieve the intended results. In specifying discharge permit conditions, the Environmental Protection Agency or the State should allow the point source to substitute other control measures or practices where equivalent results can be obtained.
It is the intent of the conferees that the Environmental Protection Agency be vigorous in exercising this new responsibility. The pollutants subject to this authority are the most hazardous to water ecosystems and public health.
The new section 304(e) enables the Administrator to specify best management practices in effluent guidelines to supplement effluent limitations in those guidelines under the criteria set forth in the new section. The Administrator has some authority to include best management practices requirements in permits under appropriate circumstances whether or not such practices are specified in effluent guidelines NRDC v.Costle, f2 (D.C.C. 1977) D.D.C. Nos. 75—2056) This new section does not impair that authority.
TOXICS AND MODIFICATION OF BEST AVAILABLE TECHNOLOGY
The seriousness of the toxics problem is just beginning to be understood. New cases are reported each day of unacceptable concentrations of materials in the aquatic environment, in fish and shellfish, and even in mother's milk. Empirical evidence has shown a statistical correlation between materials in New Orleans' drinking water and cancer mortality rates; Kepone has destroyed the James River, one of America's most productive, and most historic rivers; PCB's are pervasive and have ruined the fishing in the Hudson River and the Great Lakes; carbon tetrachloride is only the most recent material to contaminate the Ohio River; the pesticide endrin has been found in the Mississippi; perhaps worst of all are the ones we do not know of yet.
The more we find out, the more cause there is for concern. It is imperative that these materials be controlled. The 1977 requirements have made a beginning, but much more is required.
The Congress has reaffirmed the commitment made in 1972 to achieve a second phase of technology based controls on industrial point sources aimed at toxic and potentially toxic materials which remain after achievement of the 1977 requirements. Considerable testimony was taken on the 1983 requirements based upon best available technology, more than on any other subject. The issue was pursued by all committee members in the House and Senate with great interest.
The conference agreement is clear in indicating that requirement based on best available technology in Public Law 92-500, supplemented by earlier limitations under section 307(a), provide the most effective mechanism in the act for dealing with toxic pollutant discharges. Not only is BAT a technology based requirement as recommended by the National Commission on Water Quality, but it also calls for heavy reliance on advanced technology and in-process controls which are appropriate for dealing with the majority of toxic discharges. More importantly, the nature of the toxics problem is so pervasive that the most effective approach in dealing with it is on an industry-by-industry basis.
Studies over the past year have identified large numbers of pollutants that have known or strongly suspected toxic effects, many of which are carcinogens. Past experience has shown that the only practical way of dealing with such a problem is to examine each industry category or subcategory. In this manner control options can be developed that deal most effectively with the entire waste stream of an industry. This is the approach called for by best available technology.
Another, and possibly more important, reason for maintaining the BAT requirements is that the Agency currently has a major program underway of using BAT to control toxics.
Technology based effluent limitations are being developed which will place limits on toxic pollutants which pose or are likely to pose human health and ecological hazards.
The conference agreement was specifically designed to codify the so-called "Flannery decision", which set forth 65 families of pollutants which are to be regulated by BAT, and EPA has been implementing this consent decree. To take a different course for dealing with toxics at this point would require a major reprogramming of EPA resources. Such a delay, whether it be to allow utilization of a different section of the act or in order to implement this section, would only cause confusion and add still more delay to efforts to solve the toxics problem. The discharge of toxic pollutants should be eliminated as soon as possible. Because EPA is already embarked upon a program to control toxics using a proven mechanism, technology based effluent limitations, and because of the urgency to control toxics, prudent public policy demands that this strategy be maintained.
The conference agreement amends section 301(b) of the act to require that all toxic pollutants actually listed in table 1 of House Public Works and Transportation Committee Print No. 95-30 must comply with effluent limitations which require the application of best available technology no later than July 1, 1984. For all other toxic pollutants, compliance must be achieved no later than 3 years after the limitation is established. For all pollutants other than toxic pollutants or conventional pollutants, compliance with effluent limitations requiring best available technology must be achieved not later than 3 years after the limitation is established or not later than July 1, 1984, whichever is later, but in no case later than July 1, 1987.
The earliest date for which compliance is required is the same as the date for compliance with the requirements of sections 301(b) (2) (C) and (E) ; that is, not later than July 1, 1984.
For conventional pollutants, effluent limitations shall be achieved no later than July 1, 1984, which require application of "best conventional pollutant control technology" determined in accordance with regulations issued by the Administrator.
For non-conventional pollutants, the conference agreement amends section 301 by adding a new subsection (g) which authorizes the Administrator — with concurrence of the State — to modify BAT requirements with respect to any pollutant — except toxic pollutants, conventional pollutants, and heat — upon a showing satisfactory to the Administrator that the modified requirements will result at least in compliance with section301(b)(1) (A) or (C), whichever is applicable, that the modified requirements will not result in additional requirements on any other source and will not interfere with attaining or maintaining water quality which assures protection of public water supplies and protection and propagation of a balanced population of fish, shellfish, and wildlife, and allow recreational activities, in and on the water and will not result in the discharge of pollutants in quantities which may reasonably be anticipated to pose an unacceptable risk to human health or the environment because of bio-accumulation, persistency in the environment, acute toxicity, chronic toxicity — including carcinogenicity, mutagenicity or teratogenicity — or synergistic propensities. If an owner or operator of a point source applies for a modification under new subsection (g) with respect to the discharge of any pollutant, the owner or operator shall be eligible to apply for modification under section 301(c) with respect to that pollutant only during the same time period as the owner or operator is eligible to apply for a modification under subsection (g).
The Administrator is expected to expedite these determinations. Whenever he determines that there is substantial likelihood that a petition for a modification will not prevail on the merits, the conferees expect the Administrator to reject the application so that the process of compliance can begin.
The conference agreement specifically excludes heat — the thermal component of a discharge — from the definition of conventional pollutants and from the category of non-conventional pollutants. This was done to avoid further confusion and delay in the regulation of thermal discharges.
The 1972 act provided a procedure whereby the thermal component of discharges could obtain a modified effluent limitation upon a demonstration of noninterference with the balanced indigenous species of fish, shellfish, and wildlife. That procedure has been utilized; demonstrations are in the process of being made; effluent limitations have been delayed as a result of that procedure. The conferees did not want further delay. The conferees did not want to provide additional opportunities for modification or waiver.
Heat is the one pollutant for which nothing has changed since enactment of the 1972 act. Heat is still subject to best available technology as defined in section 304(b) (2) . Heat is still subject to the 1983 deadline.
The conferees are aware of the administrative and judicial implications of modifications of a law as complex as the Clean Water Act. There was only one exception provided in the 1972 act and, in that case, there had been great abuse. More than 100 steam electric powerplants applied for modification of thermal effluent limits. None have yet been placed on a compliance schedule to meet effluent limitations because of extensive delay as a result of this exception. And there is little question that after the administrative process there will be extensive litigation. Heat has become an unregulated pollutant, clearly not the intent of the Congress. The Congress intended that there be a very limited waiver for those major sources of thermal effluents which could establish beyond any question the lack of relationship between federally established effluent limitations and the national water quality standard. That limited exemption has been turned into a gaping loophole.
The cumbersome process which the Agency initiated resulted in part in a decision to avoid any application of 1977 regulatory requirements for steam electric powerplants. There is no basis for that decision in the law. The Agency also concluded that the 1972 act was preemptive with respect to the application of State water quality standards and effluent limits for heat. This is a determination for which there is no substance in law and which is wholly contrary to the committee's long held view that the States are free to establish any more strict standards of effluent limitations, as specifically set forth in section 510 of the act.
It should be noted that, as was indicated during debate on the Senate floor and as is noted in the Senate committee report, the provisions of this act with respect to any pollutant — heat, a non-conventional pollutant, a toxic or a conventional pollutant — is not preemptive of any applicable State or local requirement standard limitation or deadline.
Even without the State water quality standards/effluent limits question, the delays in section 316(a) would be unfortunate and indefensible. Similar delays under the modifications of this act would be disastrous to this program. The conferees expect the Administrator to establish an expeditious process for determining the validity of applications for exceptions, and to proceed swiftly to enforce effluent limitations applicable to pollutants for which there are no water quality standards or which would clearly interfere with attainment and maintenance of that water quality which provides for the protection of public water supplies and provides for the protection and propagation of a balanced population of fish, shellfish, and wildlife and provides for recreation, in and on the water. Only in this way can these modifications be useful, both to the source which needs to know as early as possible what will be required and to the environment which will benefit from an entire reduction of discharges of pollutants.
The Administrator is required to review, within 90 days, best available technology guidelines for any industrial categories other than the 21 industrial categories subject to NRDC versus Train. When the Administrator completes that review, in the publication of his finding he should promulgate these effluent limits as best conventional pollutant control technology. By the fact of having completed the review, the Administrator will have applied the new cost test and thus any determination as to effluent limits will be a best conventional pollutant control technology determination.
The Administrator's judgment is final unless it is determined that his action was arbitrary and capricious. Congress has given the Administrator a very brief period for review. The Administrator has testified that his standard for conventional pollutants has been similar to that which the new law requires.
It is intended that best conventional pollutant control technology codify that standard. His review of existing best available technology limits should focus on any categories where there is a possibility that best available technology actually requires more than best conventional pollutant control technology. In many cases no change or only a modest change may be required.
The conferees did not expect this review to be exhaustive or extensive. EPA's resources are limited. To direct maximum resources to removal of toxics, pretreatment, enforcement, and proper implementation of the construction grant program, this is intended to be a very limited review. The data on which these best available technology guidelines are based already exists. No new information need be developed. The Administrator must determine whether or not the cost of achieving reductions of conventional effluent bears a reasonable relationship to the amount of effluent reduction achieved. In making this determination, the Administrator is to compare the costs of industrial effluent reduction to the cost of municipal waste treatment.
The Administrator may also evaluate the effluent reduction cost/effluent reduction benefit on other cost bases including comparison with other industries. The Administrator should consider costs of process change as well as end-of-pipe treatment. Where the former is more economical, process change, not treatment, should be the basis for both the effluent limit and the cost comparison.
Best conventional pollution technology effluent guidelines are, from a regulatory standpoint, in most respects identical to best available technology except for the cost test in establishing effluent guidelines. The dates are identical, the procedure for 5 year review and update is identical, and the requirement that the Administrator consider process change as well as treatment techniques in establishing the guidelines is identical. Best conventional technology based effluent limitations are not subject to a modification on the basis of a plant-by-plant test of economic feasibility (301(c)) receiving water quality (301(g) ).
The 1972 act provided an opportunity under section 301(c) for specific sources to obtain a modification of best available technology effluent limitations on a showing that the required effluent limitations were economically unachievable for that particular source and that a modified effluent limitation would represent reasonable further progress toward the goal of elimination of discharge of pollutants.
Like toxic pollutants for which there are no waivers or modifications, there are no potential waivers or modifications for conventional pollutants. An adequate consideration of cost is made at the time of promulgation of the effluent guidelines. The statute specifically relates the economic waiver to those pollutants which remain in the best available technology category and which are not toxic — that is non-conventional pollutants. Because conventional pollutants are no longer in the best available technology category, they are not affected by any waivers or modifications, either on the basis of cost or on the basis of the test of attainment and maintenance of water quality based on protection and propagation of fish, shellfish, and wildlife.
One purpose for establishing a separate category for conventional pollutants was to assure periodic review and revision of the effluent guidelines applicable thereto. Effluent guidelines for best practicable technology were not required to be revised and reviewed because they were a time limited requirement. Best available technology to be achieved under the 1972 act by 1983 was not intended to be the final degree of control to be applied to existing facilities.
There is and will continue to be a need to press technology to improve the degree of control on both best available technology and best conventional technology. Failure to revise and reissue guidelines on a 5 year basis for best conventional technology could lead to technological stagnation. Worse, available information indicates that growth alone could wipe out the gains made by best practicable technology. Thus, there is no reason to believe that the progress achieved by conventional pollutant control, which will be considerably greater than best practicable technology, will not also be eliminated if the degree of control remains unchanged. Thus, the conferees left in place the requirement that conventional pollutants be updated every 5 years.
The new toxics provision greatly enhances the ability of the Administrator to regulate pollutants which are suspected of having toxic potential. And, the Administrator should add pollutants to the list of toxics whenever he has reason to suspect that they may fall into this category.
The conferees intend the Administrator to have the widest latitude in adding pollutants to the list of toxic pollutants under section 307. He will not be required to justify the relative advantages of listing one pollutant or group of pollutants over another. In determining the toxicity of pollutants, the Administrator must consider the definition of toxic pollutants contained in section 502(13).
While he would similarly have latitude in deleting pollutants, no pollutant listed in House Report 95-30 should be deleted without a clear finding that de-listing will not compromise adequate control over the discharge of toxic pollutants. Review of the Administrator's action will be in the courts of appeals pursuant to section 509.
Moreover, it should be obvious that the fact that a pollutant listed under section 307(a) has oxygen-demanding or other characteristics similar to those of conventional pollutants shall not affect the status of such pollutant as a toxic pollutant.
This provision is not intended to require extensive documentation of toxicity as is the case of toxic effluent standards. It is intended to be more closely akin to the general concept of the 1972 act — that is, that ecological protection will more likely be achieved through the elimination of discharge of all pollutants rather than requiring that the Government bear the burden of establishing a precise relationship between each pollutant in each effluent stream to a particular receiving water quality impact.
The control requirement for any pollutant placed on the toxic list is still best available technology unless the Administrator determines that there is sufficient information on toxicity to establish a separate nationwide effluent standard for that pollutant.
That is an important distinction. The toxic effluent limitation is a best available technology based control requirement. A toxic effluent standard is a control requirement based on an established relationship between a toxic pollutant and a receiving water/ecosystem impact. A best available technology effluent limitation applies to industrial classes and categories. A toxic effluent standard applies to the pollutant per se, and cannot be exceeded by any source of that pollutant unless the Administrator makes a separate categorical determination.
Thus, for example, toxic effluent standards must be achieved by all municipal treatment plants, whereas best available technology limits apply to industrial point source categories.
The conference agreement includes only the list of toxic pollutants for which the Administrator is currently planning to promulgate best available technology effluent limitations for 21 industrial categories. This list, of course, is in terms of families of pollutants. There are within each of those families numerous chemical compounds, all of which are presumed to be listed by statute as a result of listing the family category. This was clearly the intent of the consent agreement which this legislation codifies, and that fact is in no way changed. However, it is not the intent of this amendment, in any way, to restrict the addition of toxic pollutants to that list. The Administrator is expected to expand that list as rapidly as possible to assure maximum regulation of the discharge of potentially toxic pollutants to the aquatic environment.
The Administrator is expected to rely on other evidence of suspected toxicity. For example, there is no question that if a pollutant is determined toxic under the Federal Insecticide, Fungicide, Rodenticide Act, then that pollutant should also be on the toxic list under 307. A pollutant which is determined to be unacceptable in drinking water should be immediately added to the toxic list, because, after all, drinking water is often derived from sources which are affected by point source discharges of pollutants.
There is significant Federal investment in toxicity determinations. The Administrator should not duplicate this effort. He should rely on the efforts of other sections of EPA and other agencies of the Government such as the Occupational Safety and Health Administration and the Food and Drug Administration and outside sources of information. As indicated above, suspicion of toxicity is an adequate basis for adding a pollutant to a list because, after all, such an addition only makes that pollutant subject to best available technology effluent limitations — a control requirement to which it would have been subject prior to these amendments.
These amendments are intended to improve the Administrator's ability to reduce and eliminate the discharge of pollutants. They are not intended to make that process more difficult. In fact, these amendments reduce the evidentiary burden of establishing a toxic effluent standard. While the Administrator will have to carry out further testing and have more than suspicion on which to base his determination, his decision to establish a standard will only be subject to a judicial review test of substantial evidence.
The Administrator is required by sections 301 and 307 to engage in an ambitious regulatory program. In order to carry out this vital effort, it is expected that he will make extensive use of section 308. When using section 308 for this purpose, he will not be subject to the requirements of the Federal Reports Act, 44 U.S.C. 3501-3512.
Once the review of existing best available technology guidelines for conventional pollutants has occurred and any necessary changes have been made, the reviewed and, if appropriate, adequate guidelines will no longer be considered best available technology. Instead, such guidelines will be considered "best conventional pollutant control technology" pursuant to sections 301(b) (2) (E) and 304(b) (4) . The variance under section 301(c) accordingly is not available for such pollutants after the review.
As under prior law, implementation of the act need not be delayed pending promulgation of regulations. Under section 402(a) (1), State and Federal permit issuers have authority to implement the requirements of the act in permits whenever pertinent regulations are not in existence at the time of permit issuance. Of course, the Administrator retains authority under section 402(d) to assure that all permits will carry out the purposes of the act — particularly with regard to control of toxic pollutants — and will not prevent timely compliance with any effluent limitations which the Administrator will subsequently promulgate.
PRETREATMENT
The agreement reached by the conferees on pretreatment requires EPA to establish technology based pretreatment standards under section 307 (b) and (c) . The standards will at least include 21 industries and 65 toxic pollutants; additional industries and pollutants may be added later. Where set, national pretreatment standards will be developed by applying best available technology — used for setting direct discharge effluent limits — to the indirect dischargers.
The Agency will encourage local enforcement of the national pretreatment standards initially, and as municipal permits are revised, require a local compliance program as a condition of the section 402 permit. Local compliance programs will be approved by EPA or by the permitting States with EPA review. Where local compliance programs have been approved, local governments will be responsible for enforcing national and local pretreatment standards. And such standards will be conditions on applicable permits: EPA or permitting States will initiate enforcement procedures wherever local governments do not assume enforcement authority and wherever needed to back up local authorities or to protect the environment.
Where a local compliance program is approved, EPA and the permitting States may approve case-by-case modifications of the national pretreatment standards — or local credits — for documented pollutant removals attained by a publicly owned treatment works. To receive a local credit, there must be a demonstration that the pollutant is degraded or treated; credits will not be given for dilution. Such credit approvals will be conditioned initially upon municipal compliance with Resource Conservation and Recovery Act requirements under subtitles C and D, and in 1983 upon the treatment works being capable of making beneficial use of its municipal sludge as established under subsection 405 — unless such use is shown to be infeasible. National standards will not permit local credits for pollutants which are bio-accumulative or persistent toxics. Tying local credits to local compliance programs not only provides an incentive for local participation, but more importantly, it provides assurance that the removal levels which justified the local credits will be maintained by a publicly owned treatment works committed to operating a sound pretreatment program.
In addition to the local credit incentive, Federal encouragement of local pretreatment programs will include, but not be limited to, financial incentives — funding of State and local program development costs through section 106, 201 and 208. Regulatory incentives will include requiring a local compliance program. Construction grant recipients will be required to have user charge programs which, in combination with other revenue sources, are capable of supporting an approved local pretreatment program. All construction grant recipients will be required. to have approved local pretreatment programs as a condition of their grants.
The conference agreement requires that States with permit programs approved prior to enactment must conform their programs to the new pretreatment requirements no sooner than 1 year after enactment or, if new State law is required to do so, no sooner than 2 years after enactment. Such States obviously may not be accorded an unlimited time to conform their programs to these new requirements. The Administrator is expected to establish by regulation a reasonable time by which such States conform their programs to these new requirements or face withdrawal of the approval of their permit programs.
INDUSTRIAL DEADLINES
With respect to the industrial program, the Congress recognizes and applauds the significant success that most of the Nation's major industries have attained. And, for those who have begun, made the investment in waste treatment facilities, and complied with the 1977 requirements, there will be significant economic as well as environmental benefits. There will be environmental benefit to receiving waters, and economic benefit to those companies which bought pollution control when pollution control was considerably less expensive than it will be as result of inflationary patterns.
Between 80 and 90 percent of the Nation's industries meet the 1977 requirements of the 1972 act. A good portion of those who do not, have failed for what appear to be legitimate reasons. And about half of those who have failed, according to the Environmental Protection Agency, have not complied because of lack of diligence, lack of good faith, or lack of interest in the success of this program.
As of July 1, 1977, only a small percentage of sources within a few major industrial categories were out of compliance with the 1977 requirements and subject to enforcement actions. Of 4,000 major industrial dischargers only 633 or 15 percent failed to meet the deadlines. Of these, only 300 are candidates for enforcement. Of the remainder, more than100-plus are power plants awaiting 316 exemption decisions; 100 are in adjudicatory hearings contesting legitimate issues; and 100 are tied into municipal systems. Some of the 300 will end up in court if the enforcement order is contested. There are 94 district courts in the country; there is no danger of the courts being overlooked by enforcement actions, and EPA is trying to negotiate enforcement orders without going to court.
For those industrial dischargers not in compliance, the bill provides the Administrator with yet another tool by, in effect, sanctioning what has been a policy of dubious legality with respect to delays in compliance. Three new enforcement tools are provided. First, these amendments provide the Administrator with authority to issue enforcement orders which specify a reasonable time for compliance with final deadline. Current law limits the Administrator to issuing orders of 30 days duration.
Second, these amendments allow the Administrator, at his initiative, to grant a simple extension of up to 18 months to a source whose facilities are under construction but could not have been completed by July 1, 1977. This is simply a codification of the enforcement compliance schedule letter process which the Administrator has used for sources which, in good faith, have tried to comply with the law.
Third, if a source is in violation of the law but does not meet the test outlined above, and the source intends to discharge into a publicly owned treatment works, the Administrator may grant a compliance order requiring compliance by the earliest practicable date, but no later than July 1, 1983, if the treatment works concurs.
The Environmental Protection Agency has developed an enforcement strategy under current authority to initiate enforcement actions only against recalcitrant major dischargers. Dischargers who miss the July 1, 1977, deadline through no fault of their own will not be subject to enforcement actions; instead, they will receive enforcement compliance schedule letters, stating a specific date by which they must comply with a final deadline and an interim compliance schedule. The conference bill, essentially, codifies this policy.
The act requires industry to take extraordinary efforts if the vital and ambitious goals of the Congress are to be met. This means that business as usual is not enough. Prompt, vigorous, and in many cases expensive pollution control measures must be initiated and completed as promptly as possible. In assessing the good faith of a discharger, the discharger is to be judged against these criteria. Moreover, it is an established principle, which applies to this act, that administrative and judicial review are sought on a discharger's own time.
The conferees believe that a case has been made that some relief from penalties must be granted for those sources which have made a good faith attempt to comply with the deadlines in the statute but for justifiable reasons have been unable to do so.
The conferees considered but rejected the alternative in the House-passed bill of providing a case-by-case extension of the deadlines set out in the statute. That alternative was rejected because such a case-by-case extension would not only burden the administrative process but would also provide further opportunity for delay for those sources which are otherwise unable to make a legitimate case for additional time. Consequently, decisions by the Administrator pursuant to this new provision of law should not be the subject of administrative hearings and appeals but, rather, if the Administrator feels he cannot determine that a source meets the requirements of section 309(a) (5) (B) or 309(a) (6), he will immediately proceed under any of the other enforcement options set out in section 309. This authorization of limited flexibility granted to the Administrator will maintain the pressure for compliance while at the same time enabling the Administrator to use his discretion to grant any justifiable extension.
Section 309 is amended to authorize the Administrator to use his enforcement discretion in three new ways in the issuance of administrative orders: First, to require compliance with final permit requirements within a reasonable and expeditious time; second, to require compliance with the requirements of section 301(b) (1) (A) of the act by industrial dischargers meeting specified criteria by April 1, 1979; and third, to require compliance by an industrial discharger not meeting all of the criteria for an extension under the new section 501(i) (2) by discharging its wastes by July 1, 1983, to a publicly owned treatment works that will meet the requirements of section 301(b) (1) (B) and (C) of the act after receiving the wastes from the industrial discharger by July 1, 1983.
These remedies are all at the discretion of the Administrator. No discharger has any right to compel the Administrator to provide a particular remedy. These remedies are in addition to and not exclusive of existing remedies. The Administrator, for instance, in appropriate cases may seek a civil penalty as well as issuing an administrative order. He is expected, however, not to seek penalties in instances from a discharger to which he issues an administrative order under the new section 309(a) (5) (B) as long as the discharger is in compliance with that order, since that new section was designed in part to remove the stigma of noncompliance from dischargers meeting the criteria of that section not in compliance because of circumstances entirely beyond their control. It should be noted that the extensions available to industrial dischargers in administrative orders in the new section 309(a) (5) (B) and in permits in the new section 301(i) (2) (B) are available only to dischargers that have acted in good faith. The Administrator is not expected to grant comparable extensions in administrative orders under the new section 309(a) (5)(A) or (C) to industrial dischargers that have not been in good faith.
It must be emphasized that the Administrator is expected to utilize section 309 (a) (6) only in those few cases where the discharger has acted in good faith and the Administrator finds that such means of compliance would result in more rapid and effective reduction of the amount of pollutants discharged than any other alternative means of compliance. The fact that use of a publicly owned treatment works would be less expensive than treatment by the discharger is not relevant to the exercise of the Administrator's discretion to use this enforcement alternative.
In providing the Administrator with additional flexibility to issue enforcement orders where compliance with statutory deadlines would be impracticable, the conferees do not intend to undermine the fundamental concept of strict liability which underlies the act's enforcement provisions. In particular, the Administrator and the courts should not be burdened in enforcement proceedings with determinations of whether a discharger was negligent, not exercising due care, or otherwise at fault.
OIL SPILL LIABILITY
The conference bill makes some changes in the liability scheme for discharges of oil and hazardous substances. The changes made, while limited, are of considerable importance in the overall implementation of this provision.
First, the language of the bill would permit the expenditure of funds from the section 311 fund for the purpose of mitigating the effects of a spill of a nonremovable hazardous substance. The effect of this amendment would be to place the financial burden of protecting persons and property from the harmful effects of discharges of hazardous substances upon those who are responsible for the discharges, and to thereby provide an incentive to such dischargers to take every reasonable step to mitigate the effects thereof.
Under the current wording of the statute, while it appears that such costs can be recovered in cases of discharges of substances determined to be nonremovable, the language is somewhat ambiguous, and the purpose of this amendment is to remove any ambiguity by making clear the intention that such costs can be recovered, regardless of whether the substance is determined to be removable or nonremovable. In addition, the amendment would make clear that the section 311(k) revolving fund could be used to pay for the mitigation effort. Such authority is essential to insure prompt action to protect public health and safety, including, for example, protection of drinking water supplies in the event of a discharge of a hazardous substance.
The bill also removes the total dollar ceiling on liability for oil spills from vessels except for inland oil barges. The ceiling served no useful purpose, inadvertently subsidizing large tankers and thus enhancing their competitive position over smaller vessels. According to testimony, the $150 person limit should be adequate for cleanup of all but the most catastrophic spills. The $14 million limit in existing law is totally inadequate to deal with an oil spill of any magnitude from the size of tanker that is expected to be plying the waters of the United States.
The conference bill establishes a minimum liability for small vessels carrying oil as cargo of $150 per gross ton or $250,000 whichever is greater. For inland oil barges, the liability is $125 per gross ton or $125,000, whichever is greater.
According to testimony from the Coast Guard — the Agency charged with the responsibility for cleaning up oil spills — very often spills from small tankers and other sources are among the most difficult to clean up because they occur in areas where the water is moving and the urgency of the application of cleanup techniques is most pronounced. Additionally, the first cost of any cleanup activity is most costly. The current person limit on smaller vessels is not adequate to provide liability commensurate with the costs of cleanup which have been experienced with such spills.
The Congress is particularly concerned with the soundness of the contingency fund. As a result of the 1970 act, $35 million was appropriated to that fund. Most of that has now been depleted. While there are over $26 million in pending claims and while liability payments and penalties have been returned to the fund, depletion has resulted from cleanup from unknown sources, cleanup where costs exceeded liability, and cleanup of spills where a defense to liability was raised. The new minimum liability for smaller oil tankers and the removal of the upper limit should make the fund more sound.
The conference bill contains a provision which assures that, in most cases, the government can pursue the insurer or the spiller to recover cleanup costs without awaiting final disposition of all third-party damage claims. This provision was adopted as a result of discussions with the Justice Department which indicated that the greatest limit on speedy cleanup cost recovery was the joining of cleanup liability suits with third-party negligence actions. This will no longer be the case.
The conference bill extends authority for cleanup and liability out to the 200 mile limit of the fisheries management zone. The many recent incidents of tanker spills, especially the disaster caused by the Argo Merchant off the coast of New England, underscores the immediate need for improved protection from and jurisdiction over marine pollution. The absence of clear legal authority to deal with oil spills beyond the territorial seas is indefensible.
The bill contains language that would permit costs expended by the Federal Government or any State government for the restoration or replacement of natural resources damaged by a spill of oil or hazardous substance to be paid by the contingency fund. This provision authorizes the President, or a State representative to act on behalf of the public as trustee of natural resources to
recover such costs. This in an important protection for these natural resources, and this particular provision is fashioned after a similar one in the Deepwater Ports Act.
The Senate committee considered amendments to section 311 to establish liability for damages occurring outside the jurisdiction of any State as a result of an oil spill, including compensation for income loss due to damage to property or natural resources.
The limits for ocean going vessels are close to the Senate provision in that the outside limit of liability has been removed, thus eliminating the subsidy inherent in a maximum liability for super tankers.
As in the Senate bill, the jurisdiction of the United States to clean up oil spills and assess liability for those spills has been extended to the limits of the jurisdiction of the United States. The language has been modified to reflect the fact that this is an extension of jurisdiction for the purpose of protecting the resources over which the United States exercises jurisdiction rather than an extension of jurisdiction over waters beyond the contiguous zone.
The Senate committee considered amendments to section 311 to establish liability for damages occurring outside the jurisdiction of any State as a result of an oil spill, including compensation for income loss due to damage to property or natural resources. A related amendment creating a new compensation fund covering claims for damages above the spiller's limits of liability and funded by a 3 cent-per-barrel throughput fee on oil not already subject to the fees associated with the existing compensation funds, was also considered. The committee deferred action on these proposals and will consider them as part of the comprehensive oil spill liability legislation, which will be taken up after enactment of this bill. In that context, a provision of liability for damages and a compensation fund which does not preempt State liability requirement will be included in any committee action.
The Senate conferees are committed to consideration in this Congress of pending legislation authorizing creation of an oil spill superfund. Legislation to create such a fund has passed the House — H.R. 6803 — and has been referred to the Senate Environment and Public Works Committee along with a similar bill reported from the Senate Commerce, Science and Transportation Committee — S. 2083.
These amendments to section 311 will provide interim assurance that adequate funds will be available to clean up most oil spills and will provide a basis against which the Senate committee can consider the superfund legislation.
The conferees expect that matters raised in this section will be further reviewed in conjunction with consideration of the superfund legislation and of any international agreements on pollution beyond the territorial seas.
The conference agreement is not intended to disrupt the process of negotiation of international environmental protection agreements. It is intended rather to indicate the degree of protection which the United States believes is a minimum.
The massive amount of oil which is being moved on the oceans presents a continuing threat to the capacity of the oceans to generate food and oxygen. There is little disagreement that once polluted to the degree where these resources are in danger, the process may be irreversible.
Unlike a lake or a river which man can abandon, the oceans are elemental to man's life support system. Thus, a greater environmental ethic must be applied to protection of ocean resources than might otherwise be applied to inland waters.
The international community needs to understand the importance which the United States places on ocean resources. And the international community needs to understand the limits which the Congress imposes on those international agreements intended to make uniform laws which affect the oceans.
Mr. President, I have, as chairman of the Subcommittee on Environmental Pollution, communicated these deep concerns to Secretary of State Cyrus Vance and Law of the Seas Ambassador Elliot Richardson. I ask unanimous consent that copies of my correspondence on these issues be printed at this point in the legislative history in order that the purpose of these amendments will be absolutely clear.
There being no objection, the letters were ordered to be printed in the RECORD as follows:
WASHINGTON, D.C.,
March 22, 1977.
Hon. ELLIOT RICHARDSON,
Ambassador,
U.S. Department of State,
Washington, D.C.
DEAR AMBASSADOR RICHARDSON: I have written to Secretary of State Vance to express my concerns about certain aspects of the current Law of the Sea Negotiations. I am enclosing a copy of that letter for your information.
I am particularly concerned by the preemptive nature of the Revised Single Negotiating Text with respect to the vessel pollution area. As currently written, this proposal would limit the rights of coastal states, such as the United States, to establish and enforce standards under existing United States environmental statutes. As I stated in my letter to Secretary Vance, many of us have worked long and hard to see these environmental statutes enacted, and I would have serious reservations about a Law of the Sea Treaty which would affect the applicability of those statutes.
As a New Englander, I am sure you understand the importance of adequate protection of both marine and recreational resources. I hope the United States delegation will share my concern in this area as negotiations continue. I wish you and your colleagues the best of success.
Sincerely,
EDMUND S. MUSKIE
Chairman, Subcommittee on Environmental Pollution.
WASHINGTON, D.C.,
March 21, 1977.
Hon. CYRUS R. VANCE,
Secretary of State,
U.S. Department of State,
Washington, D.C.
DEAR SECRETARY VANCE: I have followed closely, over these last five years, the progress at the Law of the Sea negotiations because of my deep interest in a variety of issues being considered. Since I have been actively involved in the development of U.S. environmental legislation and am the Chairman of the Environmental Pollution Subcommittee of the Senate Committee on Environment and Public Works, I have watched the formulation of the environmental provisions of the Treaty with particular interest.
I would like to bring you up to date on my position on the pollution issues involved in the Law of the Sea negotiations. I think my position is fully supported by the recent series of tanker accidents, the result of which may be long term damage to marine ecosystems.
I am committed to seeing that this country takes measures to assure that our oceans and well being do not continue to suffer this harm in the future. To this end, I have introduced legislation which would extend our pollution control jurisdiction out 200 miles, and I have also introduced other legislation to assure that effective standards are adopted for vessels entering United States ports or traveling near our coastline.
The Law of the Sea Treaty should be an instrument to establish a system to eliminate environmental degradation. Certainly such a Treaty should not include provisions which would impede our efforts to move in the direction of sound marine environmental policy. However, the current negotiating text does, in fact, include such provisions.
As such, the Revised Single Negotiating Text in the vessel source pollution area is not acceptable. In particular, it would preempt the rights of coastal states, like the United States, to establish and enforce standards relating to vessel source pollution of coastal areas. Another article would prevent the United States from promulgating national environmental requirements affecting vessels in the territorial sea with respect to design, construction, manning or equipment (and even other matters, such as discharges, if these are covered by international treaty unless coastal state standard setting is specifically authorized). Also, if a vessel were to cause substantial damage to the coast of Maine or any other seaboard state, the United States would not be able to enforce our own domestic laws or international laws against that vessel if the flag state were to commence enforcement proceedings.
If the above vessel source pollution provisions are permitted to remain, they would be inconsistent with existing United States environmental policy; they would be contrary to United States laws including the Ports and Waterways Safety Act and the Federal Water Pollution Control Act; and they could result in more pollution of United States coastal areas and the oceans. While other Members of the Senate and I will want to examine closely all aspects of any final agreed upon Law of the Sea Treaty and would not, at this point, prejudge what our position on advise and consent to ratification should be, many of us will have serious reservations about the Treaty if the United States will be prevented from establishing and enforcing all standards in its territorial sea — that is, if the Treaty preempts existing U.S. environmental legislation. Many of us in Congress have worked long to secure enactment of meaningful United States environmental protection legislation. We would not be prepared to have those years of effort and success preempted by less than adequate international treaties.
Finally, with respect to the establishment of a 200 mile economic zone, it seems to me eminently sensible that the United States and other coastal states should have the right to enforce environmental standards for vessels within that economic zone. Such right should be exercisable when any pollution violations occur and should not be limited only to cases of imminent and severe environmental damage (since these are always difficult, if not impossible, to prove). Nor should this right to be subject to preemption by flag states. In the past, our delegation, for reasons which I believe are not defensible, has not been prepared to advocate such extended enforcement. I believe that the United States delegation should insist on the inclusion of this right in the Treaty.
The Law of the Sea negotiations are important to the international community and the United States for a variety of reasons, not the least of which is the protection of the ocean environment. I hope that the United States delegation will vigorously seek the protection of coastal state environmental laws in order to assure fulfillment of that commitment.
Sincerely yours,
EDMUND S. MUSKIE
Chairman, Subcommittee on Environmental Pollution.
Mr. MUSKIE. Mr. President, I would hope that in negotiation, either with respect to the Law of the Seas Treaty or any international maritime consultative organization agreements, spokesmen for the United States will view this legislation as the baseline from which they will negotiate and not, as has been the case, in the past, a starting position from which the United States will bargain.
I also hope that U.S. representatives to these negotiations will consult more closely with the Senate to assure that positions taken are consistent with domestic law. I would hope that these consultations take place at a time sufficiently prior to the formulation of a U.S. position so that the advise of the Senate can be meaningful. I, for one, am not prepared to support international agreements, the effect of which would compromise the interest of the United States in protecting ocean resources.
The amendments to section 311 underscore the importance of this section and the need for completion of long-delayed regulatory action with respect to hazardous substances. There is no reason for further delay. While designation of hazardous substances and determination of removability, harmful quantities and rates of penalty are major actions, the Administrator is expected only to make a reasonable effort to make these judgments. These are nationally applicable, before-the-fact decisions and are not expected to reflect the myriad of actual circumstances that may occur.
Judicial review should not unnecessarily prevent implementation of these regulations. Burdensome discovery should not be necessary so long as notice and opportunity to comment was provided. Review should also be consolidated as much as possible.
It is also expected that costs of mitigation actions designed to properly dispose of pollutants removed from the water or shorelines will be deemed costs properly included in section 311(c).
FEDERAL FACILITY COMPLIANCE
The phrase "particular effluent source" in the amendment to section 313 is not intended to suggest any limitation on the President's power under the general exemption provision to exempt any Federal activity, such as the strategic petroleum reserve program, from the requirements described in section 313.
ENVIRONMENTAL PROTECTION AGENCY ISSUANCE OF PERMITS
Section 402(d) as amended provides a process for the issuance of National Pollutant Discharge Elimination System permits by the Administrator after he objects to a State proposed permit. It is intended that this process be utilized to insure the rapid issuance of an effective, valid permit.
The Administrator's action in objecting to a permit would generally not be subject to judicial review since it will always be followed by further administrative action. The final issuance of a permit by EPA would be subject to judicial review pursuant to section 509 (b) (1) (F).
Furthermore, in order to insure the effectiveness of this provision, the Administrator may develop flexible procedural rules to provide for rapid permit issuance. When the record developed by the State is adequate for instance, the Administrator need not provide for public comment or a public hearing. When the record developed by the State is inadequate to support a permit determination by the Administrator, he may remand the permit proceedings to the State with instructions to develop an adequate record or he may develop such record himself.
DREDGE AND FILL PERMIT PROGRAM
The provisions of the conference report dealing with discharge of dredged or fill material amend sections 404 and 208(b) (4) of the act. These amendments are essentially the same approach as taken in the Senate-passed bill, and the Senate report and floor statements at the time of Senate passage are still adequate reflections of legislative intent with respect to this program.
The conference bill follows the Senate bill by maintaining the full scope of Federal regulatory authority over all discharges of dredged or fill material into any of the Nation's waters. It provides for the substitution of adequate State programs for permit issuance by the Corps of Engineers, and for general permits to be issued by the Corps or under approved State programs.
The bill also provides the exemptions from the permit requirement for certain specified activities as provided in the Senate-passed bill.
The two major changes from the Senate version are a greater degree of specificity about the type of "best management practice" regulation under section 208(b) (4) which qualifies an activity for exemption from the section 404 permit requirement, and a restatement of the exemption for Federal projects.
The conference bill amends section 208(b) (4) to authorize the Administrator to approve statewide regulatory programs to control those discharges of dredged or fill material that are better handled through imposition of best management practice requirements. The section 208(b) (4) (B) program is intended to complement State permit programs approved under section 404.
Once a State has an approved section 404 permit program and an approved section208(b)(4)(B) regulatory program, the Administrator may approve best management practices imposed by the State to control an activity which he determines will have only minor individual or cumulative effects on the aquatic environment. If the Administrator approves best management practices as adequate to control a specific activity without additional permit review, providing a degree of protection comparable to that from section 404(b) (1) guideline review, Federal permits should not be required. Best management practices will not be appropriate as the sole means of control for activities such as channelization and site development fills that can impair the circulation or reduce the reach of navigable waters. Such activities, by their very nature, will continue to require individual attention through a permit review process, as will all discharges involving any toxic pollutant listed under section 307(a) (1) .
Of course, best management practices may be required for such activities as permit conditions. It is not expected that the section 208(b) (4) (C) exemption from permit requirements will be available for whole classes of activity, such as silviculture. While the intent of section 208(b) (4) is to encourage States to develop best management practice requirements for all such activities, as part of a general forestry practices act or otherwise, each individual activity or practice must be scrutinized in light of the section 404(b) (1) guidelines and approved by the Administrator before the permit exemption is available.
A section 208(b) (4) (B) is not a substitute for the section 404 program, and the Administrator cannot approve best management practices to replace the State's permit review process in its entirety. This is consistent with the principal that section 208 (b) programs generally, at the State or area wide level, do not duplicate the permit programs for point sources under sections 402 and 404, but incorporate them in a broader effort to attain the water quality objective of the act.
The Administrator must assure that an approved best management practice is specific enough to inform each person conducting an activity what is specifically required of him. The conferees expect that any approved section 208(b) (4) (B) program will include an active enforcement process with demonstrated capability and adequate resources.
New subsection 404(r) provides an exemption from the permit requirement for discharges of dredged and fill materials associated with the construction of certain Federal projects. Only fully Federal projects which are specifically authorized by the Congress may qualify for this exemption. Federally assisted projects, such as watershed improvement plans under the Soil Conservation Service, do not qualify even if authorized by name. Projects which are authorized by congressional committee resolution and projects which do not belong to the Federal Government but are financed in whole or in part with Federal funds are not eligible for the exemption. Maintenance of existing Federal projects is not covered by the exemption either.
A Federal project may be exempted from the requirement for a permit under section 404 or an approved State section 404 permit program only if the Congress had adequate information on the effects of the discharge of dredged or fill material at the time of authorization, or at the time of a specific appropriation of funds for the construction involving the discharge. This information must be in the form of an environmental impact statement which specifically addresses the effects of the discharge of dredged or fill material, providing an evaluation of those effects equivalent to that required under the section 404(b) (1) guidelines. It is unlikely that environmental impact statements prepared before the passage of this legislation or promulgation of those guidelines would satisfy this requirement.
The Congress must have adequate siting, engineering, and environmental information and analysis on each proposed Federal project, as well as modifications recommended by reviewing agencies, in order to review the available alternatives to and potential adverse impacts of the proposed discharges. The Administrator will be expected to see that the section 404(b) (1) guidelines are sufficiently explicit to focus attention on those aspects of Federal project dredge and fill material discharges that could result in environmental degradation. And the Administrator must assist other agencies by carefully reviewing draft environmental impact statements to assure that the guidelines are being interpreted and implemented properly.
Mr. President, the Senator from Arkansas, Mr. BUMPERS, has written to me as chairman of the conference committee, on the question of Federal projects exemption. I ask unanimous consent that his letter be printed in the RECORD at this point.
There being no objection, the letter was ordered to be printed in the RECORD, as follows:
WASHINGTON, D.C.,
December 14, 1977.
Hon. EDMUND MUSKIE,
Chairman, Subcommittee on Environmental Pollution,
Committee on Environment and Public Works,
Washington, D.C.
DEAR ED: I am especially concerned about the effect that the conference report on H.R. 3199 may have on Section 404 of the Water Pollution Control Act. As you know, this provision of law, now codified as 33 U.S.C. Section 1344, places upon the Secretary of the Army, acting through the Chief of Engineers, the authority to issue permits for the discharge of dredged or fill material into the navigable waters at specified disposal sites. Under subsection (c), however, the Administrator of the Environmental Protection Agency is authorized to prohibit or restrict the use of any disposal site for dredged or fill material if he determines that the discharge of such materials at that site will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas) wildlife, or recreational areas. The Administrator is required to set forth in writing and make public his findings and his reasons for making any such determination.
This provision has played an important part in the orderly development of federal water resource projects. The power which it grants the Administrator of EPA is especially important in connection with Corps of Engineers projects. In those instances, without subsection (c) of Section 404, the Corps of Engineers would, in effect, be granting itself a permit for the disposal of dredged and fill material. Subsection (c) has provided a valuable check. It has prevented the Corps from being judge in its own cause.
The pending conference report would change this aspect of Section 404 rather significantly. Section 67(b) of H.R. 3199, as agreed to by the conferees, would add a new subsection (r) to Section 404. This new provision would apply to federal projects specifically authorized by Congress. The discharge of dredged or fill material as part of the construction of such projects could not be prohibited by or regulated under Section 404 if certain rather specific conditions are met. If the project is to qualify for this exemption, information on the effects of the discharge, including consideration of the guidelines developed under subsection (b) (1) of Section 404, must be included in an environmental impact statement, and such impact statement must have been submitted to Congress before the actual discharge of dredged or fill material in connection with the construction of such project and prior to either authorization of such project or an appropriation of funds for such construction.
I would like to ask you, as manager of the bill, whether you concur in my construction of subsection (r). The explicit requirement that environmental impact statements include information on the effects of the discharge, including consideration of the guidelines developed under subsection (b) (1) of Section 404, is of course entirely new to the law. It seems clear, therefore, that to qualify for this exemption environmental impact statements prepared before the pending conference report becomes law may well need to be amended or updated, with any amendments or changes going through the customary process of circulation of a draft impact statement.
The depth and quality of discussion of the effects of discharges, including consideration of the (b) (1) guidelines, are crucial to new subsection (r). The filing of an impact statement adequately exploring these issues in depth is a condition precedent to the operation of subsection (r). It is my understanding that until and unless such impact statements, or amendments to statements, are circulated and filed in accordance with the guidelines of the Council on Environmental Quality and other applicable laws and regulations, the Section 404 permit requirements as it existed before the passage of the presently pending bill will remain in full force and effect as to any given project in question.
Your attention to these issues is greatly appreciated. Many thanks for all your courtesies.
Sincerely yours,
DALE BUMPERS.
Mr. MUSKIE. Mr. President, the Senator from Arkansas' letter addresses an important issue. The depth and quality of discussion of the effects of discharges, including consideration of the (b) (1) guidelines, are crucial to the operation of new subsection (r) . The filing of an impact statement adequately exploring these issues is a condition precedent, to the operation of subsection (r) .
Until and unless adequate impact statements, or amendments to statements, are circulated and filed in accordance with the National Environmental Policy Act and the (b) (1) guidelines, the permit requirements of section 404 which existed before the passage of the presently pending bill will remain in full force and effect as to any given project in question.
The process of review of environmental impact statements by other agencies should provide the same degree of coordination now provided in the interagency review of permit applications.
In addition, I want to stress that any State permit program for the discharge of fill material approved by the Administrator must have demonstrated itself capable of accomplishing the same objectives as the Federal permit program. The State program must include enforcement authority comparable to the Federal program, with adequate resources including staff and funds, and must assure coordination with all related Federal, State, and local programs. A State permit program must include substantive decision making criteria as stringent as the section 404(b) (1) guidelines.
The conferees agreed to adopt the Senate amendment that legislatively clarifies the exclusion of certain activities that do not typically involve point source discharges of dredged or fill material and will be adequately controlled by best management practices and performance standards. The conferees have adopted the Senate's explicit approach for clarifying that plowing, seeding, cultivating, harvesting, minor drainage, and soil and water conservation practices performed on uplands were not intended to require section 404 permits. Such exemptions were provided by the Corps of Engineers' regulations under the current law.
New subsection 404(f) provides that Federal permits will not be required for those narrowly defined activities that cause little or no adverse effects either individually or cumulatively. While it is understood that some of these activities may necessarily result in incidental filling and minor harm to aquatic resources, the exemptions do not apply to discharges that convert extensive areas of water into dry land or impede circulation or reduce the reach or size of the water body. For the same reasons, paragraph (1) (1) (E) provides that farm and forest roads are to be constructed and maintained in accordance with best management practices to minimize any adverse effects that may occur when water is displaced by fill material.
Subsection (t) of section 404 was a provision of the Senate-passed bill which was adopted by the conferees with limited modifications. Subsection (t) clarifies the intent of Congress that the maintenance dredging activities of the U.S. Army Corps of Engineers, as all other Federal activities, should be subject to State permit requirements.
Subsection (t) was offered in the Senate Environment and Public Works Committee by Senator ANDERSON as a result of varying legal interpretations of the applicability of sections 313 and 404 to dredging activities. The Senate report, page 68, summarizes the past litigation on these provisions. By enacting subsection (t) the Congress will clarify that Corps dredging activities are not exempt from State pollution abatement requirements. In fact, under section 404(t) and the amendments to section 313, every Federal activity is subject to State and Federal procedural requirements, including permits, as well as substantive requirements. Activities on federally managed lands are covered as well.
The conferees agreed to three modifications of related Senate-passed provisions. None of these, however, were intended to detract from the basic thrust of subsection (t) : The Corps of Engineers, like any other Federal agency, in performing maintenance dredging or undertaking other activities, is to comply with State substantive and procedural requirements. First, the conferees agreed to amend section 313 to provide the President with a procedure to provide limited exemptions for military equipment and vessels from Federal, State, interstate, or local requirements. This provision arises from concerns expressed by the Department of the Navy about the possible application of subsection (t) to military activities, to the detriment of national defense. Only in cases where the Corps of Engineers is performing dredging for access channels for critical military vessels could this authority limit subsection (t) as it applies to maintenance dredging.
Second, the conferees agreed to restrict subsection (t) to State and interstate requirements only, thereby eliminating from the Senate language local requirements.
Third, the conferees agreed to include in the language of subsection (t) the precise language that appears in section 511(a)(1) of the Federal Water Pollution Control Act of 1972:
This section shall not be construed as affecting or impairing the authority of the Secretary to maintain navigation.
The Senate conferees agreed to this provision since this language is part of the current law and was not primarily at issue in the litigation that prompted this provision. It is also not inconsistent with the Senate report on this provision.
The addition of the language from section 511(a) (1) to subsection 404(t) is not interpreted by the conferees as either contradicting, nullifying, or restricting the principal purpose of this provision on the corps; namely, to comply with State water quality standards when dredging.
Those State water quality standards covering turbidity, suspended solids, and other parameters, that are applicable to all other dischargers to public waters, will now be applied to the significant dredging activities of the corps, and all other Federal activities.
The conferees recognize, as was specifically included in the Senate report on this legislation, that compliance with water quality standards by the corps is dependent on the availability of funds for on land or confined disposal of dredge spoil. We affirm the language in the Senate report that it is the responsibility of the Secretary of the Army to seek funds from the Congress for maintenance dredging to be performed consistent with State water quality standards. The first evidence of the intentions of the Corps to comply with section 404(t) of the Clean Water Act of 1977 in good faith will be the expeditious allocation by the Secretary of the Army and Chief of Engineers of funds to local Corps district offices for compliance with this provision during the 1978 dredging season, or, if such funds are not available from funds now under the control of the Army, a request to the Congress for a supplemental appropriation to insure that the Corps has those funds required to dredge in compliance with State water quality standards.
In summary on subsection (t), the intention of the Federal Water Pollution Control Act of 1972 was not to exempt the U.S. Army Corps of Engineers or any other public or private agency from State water quality standards and the interpretation of section 404 by the courts is at variance with the intent of Congress. In fact, Congress intended that section 404 in the 1972 act would in its initial implementation end the open water disposal of dredge spoil. Quite the contrary has been the case. Section 404(t) of the Clean Water Act of 1977 is clear direction from the Congress to the Corps of Engineers that dredging must be performed in compliance with the same water quality standards and pursuant to the same procedural requirements with which any other dischargers to the Nation's waters must comply.
EMERGENCY FUND
The emergency fund amendment provides general authority for the Administrator of the Environmental Protection Agency to abate environmental emergencies. The authority is not limited to water pollution emergencies. Examples of the kinds of events for which funds authorized by this section might be used include:
Louisville, Ky.: On March 29, 1977, toxic fumes emanating from a sewer line caused several people to faint on the streets of Louisville. It was later determined that the toxic fumes stemmed from a mixture of hexa- and octa-chlorocyclopentadienes, resulting in the hospitalization of over 10 persons and the closing of the wastewater treatment plant. The plant was forced to divert millions of gallons per day of untreated sewage into the Ohio River for about 2 months until the plant was able to resume its full operation again. The overall cleanup effort included the removal of the chemical contaminant from the sewer line, decontamination of the waste treatment facility, and ultimate disposal of the contaminated sludge. The two organic chemicals are not designated on EPA's hazardous substances regulation, therefore, the 311(k) revolving fund would not have been available for expenses incurred for the cleanup operation.
Kernersville, N.C.: On June 3, 1977, vandals had entered a facility, owned by Destructo Chemway Corp. near Kernersville, N.C., and opened valves on six storage tanks. Approximately 30,000 gallons of waste oil and a mixture of organic chemicals were discharged into an unnamed tributary and eventually entered the Kernersville Reservoir, a 24 acre lake serving as the primary drinking water source for Kernersville's residents and industry. All costs associated with the removal and disposal of the waste oil, which were on the surface of the lake, were charged to the Federal revolving fund under section 311(k) of the Federal Water Pollution Control Act. Other non-oil contaminants remained in solution in the water column and were not removed. These contaminants would pose an imminent threat to downstream water use in the event the reservoir overflows.
Kingston, Tenn.: On March 5, 1973, a transformer owned by General Electric Co., was transported via truck to its new destination. When the transformer started to leak on highway 58 near Kingston, Tenn., the driver of the truck dumped approximately 1,500 gallons of Pyranol near the roadside. Pyranol is composed of a mixture of PCB's and chlorinated benzenes. Because the spill occurred near the top of a hill, a considerable area was contaminated. The contaminated soil was excavated, placed into 11,500 drums, transported and disposed of at a chemical landfill in Texas by General Electric Co. The overall cleanup cost incurred by the company was over $1.7 million. Although PCB's are on the 311 hazardous substances designation list, section 311 of the Federal Water Pollution Control Act is not applicable because the incident did not involve navigable waters of the United States.
Charleston, W. Va.: On February 18, 1977, EPA detected unusually high concentrations of carbon tetrachloride in the Kanawha and Ohio Rivers. It was estimated that 70 tons of carbon tetrachloride had found their way into the rivers. On February 24, 1977, FMC Corp. reported a spill of 5,300 pounds of carbon tetrachloride into the Kanawha River. On March 8, FMC notified EPA of another spill, and again on May 26, FMC experienced a spill of between 200 to 400 pounds of carbon tetrachloride. Carbon tetrachloride is not currently designated on EPA's 311 hazardous substances list — proposed rule.
Hopewell, Va.: A converted gasoline station, owned by Life Science Inc., was used to manufacture kepone at Hopewell, Va. After 16 months of operation, the facility was shut down on July 14, 1975. The kepone was responsible for disabling some of the workers who work at the site. During the operation of the plant, kepone contaminated effluent was chronically discharged into the James River via Hopewell treatment plant, and it is now found to be spreading in the Chesapeake Bay. In late 1974, the failure of the digesters at the Hopewell treatment plant led to the discovery of relatively high kepone concentrations in the sludge. This kepone contaminated sludge was placed in a specifically constructed storage lagoon where it remains today. Other materials, such as filters, clothing, and activated carbon, which became contaminated during the demolition of the converted gasoline station, were also stored in sealed barrels at the Hopewell sewage treatment plant site. The lagoon sludge, barreled material, and decontamination water still require ultimate disposal in an environmentally acceptable manner.
Oswego, N.Y.: On March 23, 1977, a potential major spill of 1.4 million gallons of waste oil and other chemicals at Pollution Abatement Services (PAS) near Oswego, N.Y., was reported to EPA Previous spills from PAS, a liquid waste disposal company, had occurred in June and December 1978. EPA region II assumed responsibility as on-scene coordinator and activated EPA's treatment trailer. On August 29, 1977, a district court judge in New York granted a preliminary injunction against PAS, enjoining it from further discharge of oil or chemical waste. The judge also directed EPA to remove the contents in two containment lagoons and lower the level in two others to eliminate leakage through the dikes. All costs associated with the removal and disposal of PCB contaminated surface oil and oily sludge can be charged to the Federal revolving fund under section 311(k) of the Federal Water Pollution Control Act. Removal of other non-oil contaminants, such as chemical waste in 55 gallon drums, could pose an imminent threat upon discharge. Expenses incurred for the removal of these non-oil contaminants cannot be charged to the 311(k) Federal revolving fund because the majority of the contaminants are not designated on EPA's hazardous substances list.
Chicago, Ill.— On April 26, 1974, a chemical storage tank at bulk terminal on Chicago's south side ruptured, discharging silicon tetrachloride. The chemical reacted with the moist air and produced a nausea inducing, acid cloud which measured from 5 to 10 miles long as it moved across the city. Nine governmental agencies were involved in the incident. State, city, and Federal agencies worked for 8 days to stop the leak, neutralize the spill and transfer the material to another tank.
Pensacola, Fla.: L. & N. railroad suffered a 15 car derailment on the east side of Pensacola's city limits, west side of Escambia Bay. Derailment occurred at 6:30 p.m. CST on November 9, 1977. Two cars of anhydrous ammonia were involved, one car ruptured and one car leaking. Sixteen people were hospitalized, four critical and one dead. One thousand people were evacuated. On-scene decisions were made by a disaster team from air products. Their decision was that they could not patch either tank so they hooked a water hose to each tank, flushed it out, diluted the ammonia and discharged it into the bay. This was not a 311 incident, there was no EPA 311 emergency personnel on-scene and no 311 funds were utilized.
PBB'S IN MICHIGAN
In 1973, a large batch of cattle feed was contaminated by the chemical PBB in Michigan. The result of that contamination and its subsequent dispersal throughout the environment of Michigan has resulted in the contamination of some 9 million human beings with the chemical and the destruction of thousands of head of livestock.
While the responsible chemical was identified in 1974, reaction by the State and Federal officials to prevent the spread of the chemical and to take remedial action was incredibly slow. For example, in January of this year, nearly 4 years after the contamination incident, Government officials are finally beginning to examine whether or not workers engaged in the manufacturing and processing of PBB may be experiencing ill health effects. If a section 69 had been applicable when the contamination occurred, the spread of this chemical could have been reduced and much of the suffering and economic damage which exists even today could have been avoided.
NONCOMPLIANCE FEES
The conferees deleted a provision in the Senate-passed bill which required the Administrator to assess a noncompliance fee against industrial point sources not in compliance with the requirements of the act after July 1, 1979, in amounts commensurate with the economic benefit of the delayed compliance. A similar provision was contained in the Clean Air Act Amendments of 1977.
The conference committee dropped this provision as unnecessary at this time, for two reasons. First, although there are well over a thousand major sources of air pollution that will not be in compliance with Clean Air Act requirements on July 1, 1979, there are only a few hundred major industrial sources of water pollution that are expected to be in noncompliance with Federal Water Pollution Control Act requirements by that date. This relatively good compliance record appears to make the addition of a new enforcement tool unnecessary at this time. Second, the Agency's current enforcement policy is to seek court imposed penalties for noncompliance with Clean Water Act requirements in amounts commensurate with the economic benefit of delayed compliance, among other factors.
This policy embodies congressional intent on the criteria that should be considered by courts in imposing civil penalties under existing provisions of the act. Successful implementation of this policy by the Agency through the courts may make the provision for administratively assessed, economic benefit fees unnecessary. Subsequent review of compliance under the Clean Water Act, the success of the Agency in implementing its penalty policy through the courts, and the time delay and resource demands of seeking judicially imposed penalties may indicate that the administrative assessment mechanism will become necessary in the future.
The deletion of this provision is in no way intended to affect the Agency's current enforcement strategy.
Mr. President, I ask unanimous consent that a letter and a document outlining EPA's enforcement strategy be printed in the RECORD at this point.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
WASHINGTON, D.C.,
December 14, 1977.
Hon. EDMUND S. MUSKIE
Chairman, Senate/House Conference Committee on H.R. 3199,
U.S. Senate,
Washington, D.C.
DEAR SENATOR MUSKIE: You have asked for an elaboration of the Agency's policy with regard to civil penalties under section 309 of the Federal Water Pollution Control Act and section 113 of the Clean Air Act.
The Agency believes that civil penalties should be utilized to deter violations of and to encourage future voluntary compliance with the requirements of the Acts. To achieve these goals the Agency believes that the amount of civil penalties assessed against major industrial sources of pollution must at least remove any economic gain achieved by noncompliance and may have to be larger in some cases.
The assessment of civil penalties in these amounts will result in greater equity in the enforcement of these Acts by insuring that sources which comply with the Acts' requirements in a timely manner do not suffer an economic disadvantage in comparison with those that do not.
Accordingly, it is the Agency's policy to compute penalties in agreed upon settlements in civil cases commenced under the Acts against major industrial sources of pollution by:
1. Calculating the amount of economic advantage secured by noncompliance;
2. Adding appropriate amounts for aggravating circumstances, such as the degree of environmental harm caused by the violation, the degree to which the integrity of the regulating systems created by the Acts is threatened. by the violation, and abnormal expenditures by the Agency to secure compliance;
3. Multiplying the sum of (1) and (2) by a percentage reflecting the probability of successfully proving the alleged violation in court; and
4. In extreme cases, by deferring or reducing the penalty in whole or in part, where the immediate payment of the full amount would render it impossible for the source to install the required pollution controls and stay in business.
In cases that are tried rather than settled the Agency would ask the judge to take the same factors into account, with two exceptions. Since a litigated case would not reach the issue of penalties unless the underlying violations are proved, no discount to reflect probability of success on the merits would be appropriate. Moreover, penalties assessed by judges should be sufficiently higher than penalties to which the Agency would have agreed in settlement to encourage violators to settle.
This policy was established for civil cases under the Federal Water Pollution Control Act in a policy memorandum dated June 3, 1977, a copy of which is attached. That policy now also applies to civil actions commenced under section 113 of the Clean Air Act.
The economic benefit component of civil penalties assessed under section 113 of the Clean Air Act, of course, should not be duplicative of administratively assessed noncompliance penalties under section 120 of the Clean Air Act.
The Agency is currently consulting with the Department of Justice, U.S. Attorneys and State officials around the country to explore various issues and questions which have been raised with regard to the implementation of the policy. Such consultation, together with experience in implementation of the policy over time, will lead to future guidance to elaborate and improve the policy to deter violations and encourage compliance by securing penalties in amounts at
least equal to the economic benefit of noncompliance.
If I can be of further assistance in clarifying this policy, please do not hesitate to contact me.
Sincerely yours,
(s) JEFFREY G. MILLER. MARVIN B. DURNING,
Assistant Administrator for Enforcement.
MEMORANDUM
Washington, D.C.
June 3, 1977.
To Regional Administrators.
Subject: Settlement of Section 309(d) Enforcement Cases for Monetary Amounts.
Section 309(d) of the Federal Water Pollution Control Act sets a maximum civil penalty of $10,000 per day of violation. Although the statute sets a maximum, it provides no guidance as to what would be an appropriate penalty for a particular violation. The amount of the appropriate penalty is especially important when the Agency and a violator are attempting to settle a case without litigation. This memorandum is being transmitted in order to provide some guidance on the level of appropriate penalties in settlement.
The first task in determining an acceptable settlement figure is to estimate, as precisely as possible, the monetary judgment likely to result if the case were to proceed to trial. For planning purposes at this stage the assumption is made that the Agency's position will prevail on the merits.
In arriving at the estimated judgment figure, a number of factors should be considered, including the following:
(1) The extent to which the defendant may have profited by failing or delaying to comply,
(2) The degree of harm to the public caused by the defendant's failure to comply.
(3) The willingness of the violation, or the good or bad faith of the defendant in meeting its obligation to comply,
(4) The necessity of vindicating the authority of EPA,
(5) The ability of the defendant to pay the penalties.
Many of these factors will necessarily be quite subjective; as the attachments explain in more detail, however, these are the considerations analyzed by the courts in determining an appropriate penalty.
Perhaps the most important single criterion in estimating an appropriate judgment amount is an analysis of the economic benefit that accrues to the discharger as a result of noncompliance. From this starting point appropriate penalties can then be calculated either up or down depending upon an examination of the other factors listed above.
After determining the approximate benefit of noncompliance to the violator, the estimated judgment figure should be increased by the amount of any economic harm resulting from the defendant's failure to comply.
An extremely important criterion, which may either increase or reduce the estimated judgment figure, is the degree of willfulness connected with the violation, or the good or bad faith of the defendant.
A factor which could increase the estimated settlement amount is the necessity of vindicating the authority of the Agency. This criterion is frequently intimately connected with the concept of willfulness. For example, an intentional flouting of an order issued by the Administrator under subsection 309(a) of the FWPCA would certainly require a more severe penalty than a negligent or unintentional violation.
It should be noted that, in reaching the estimated figure, a best judgment approximation should suffice, rather than the precise economic calculations necessary if the case were to go to trial. After the above calculations have been made and an estimated judgment amount derived, consideration should be given to the likelihood of prevailing on the merits. The probability of success, expressed in percentage terms, should then be multiplied by the estimated judgment figure. The product represents the bottom line settlement amount; if the discharger insists on a lower figure as a condition of settlement, (except in the "inability to pay" situation mentioned below) the case should proceed to trial. For example, if the estimated judgment is $1 million, and the probability of success 80%, the Region, while free to seek a higher amount, should not settle the case for less than $800,000.
If the minimum settlement figure, derived in the manner described above, appears excessively disproportionate to the defendant's resources, the Region may determine to lower its settlement demand to a more appropriate level. Two points should be noted here. First, such a reduction is discretionary on the part of the Region, and should not, in any event, be tied to the discharger's concept of what is or is not excessively disproportionate. Second, the defendant's financial condition should be considered only from a standpoint of reducing, rather than increasing, the settlement figure.
If an appropriate settlement cannot be obtained, the case should proceed to trial with the Region seeking the maximum permissible penalty. Although the maximum penalty will in many instances far exceed the estimated judgment figure, such a policy is necessary in order to provide an incentive to settle. This is especially true in those cases where the probability of success on the merits is high. For example, assuming an estimated judgment of $1 million, and a 90 percent success probability, the minimum settlement figure would be $900,000. Assume further that the maximum penalty amounts to $5 million. A policy of seeking only the estimated judgment figure ($1 million) in contested cases provides the discharger with a substantial incentive to litigate — exactly the opposite of what we are seeking to accomplish. This anomaly occurs because the company has only $100,000 to lose (up to $1 million from the settlement figure), while standing to save as much as $900,000 as a result of litigation. On the other hand, the discharger is much more likely to settle if it knows from the outset that, if contested, the penalty could be substantially greater than the settlement figure.
The foregoing guidance should prove helpful to you in articulating the approach we have developed and which is generally already in practice. Regional expertise and knowledge of the situation are major factors to be applied by the Region in applying this guidance to specific cases. On large cases likely to attract widespread interest, and particularly on cases involving industrial facilities or situations similar to those encountered in other Regions, the process should be coordinated closely with the Office of Water Enforcement to ensure that similar situations nationally are receiving comparable treatment. While the foregoing guidance should be useful, it does not constitute a substitute for good judgment, timely and open communication between the Regional Office and the Office of Water Enforcement, and a large measure of common sense in applying this guidance to actual cases.
STANLEY W. LEGRO.
I assure my colleagues that if any of them would like to raise any point raised in any portion, I would be glad to discuss it at length.