August 4, 1977
Page 26690
CLEAN WATER ACT OF 1977
The ACTING PRESIDENT pro tempore. Under the previous order, the Senate will now proceed to the consideration of S. 1952, which the clerk will state.
The assistant legislative clerk read as follows:
A bill (S. 1952) to amend the Federal Water Pollution Control Act Amendments of 1972.
The Senate proceeded to the consideration of the bill.
The ACTING PRESIDENT pro tempore. Time for debate on this bill is limited to 3 hours, to be equally divided and controlled by the Senator from Maine (Mr. MUSKIE) and the Senator from Vermont (Mr. STAFFORD), with 1 hour on any amendment in the first degree, except an amendment by the Senator from Texas (Mr. BENTSEN) , on which there shall be 2 hours, and with 30 minutes on any amendment in the second degree, debatable motion, appeal, or point of order.
Does the Senator from Maine yield time?
Mr. MUSKIE. Mr. President, I yield myself such time as I may need.
The ACTING PRESIDENT pro tempore. The Senator from Maine is recognized.
Mr. MUSKIE. Mr. President, 5 years ago, Congress completed a comprehensive revision of national water quality policy. The 1972 Amendments to the Federal Water. Pollution Control Act were initiated by Congress and enacted over the President's veto. Their implementation has been uneven, often contrary to congressional intent, and frequently more the result of judicial order than administrative initiative.
The Committee on Environment and Public Works has now completed a comprehensive review of those 1972 amendments. That review involved 15 days of hearings at which 159 scheduled witnesses and over 75 unscheduled witnesses appeared.
The committee was unanimous in its final vote to report this bill, and I believe that every member of the committee supports the overall thrust of this measure which reaffirms the basic regulatory structure of the 1972 act.
My colleagues in the Senate will recall that earlier this year, in April, House and Senate conferees were unable to reach agreement on continued funding for the water pollution program as part of the Public Works Employment Act. The Senate bill dealt with water pollution funding only, while the House bill contained far more extensive amendments to the act. Finally, the conferees were forced to drop all water pollution provisions so that the jobs bill could go forward.
At that time, we assured both the House conferees and the Members of the Senate that the committee would conduct a comprehensive review of the Clean Water Act and report back to the Senate before the August recess. We are here today with a bill that fulfills that promise.
As chairman of the Subcommittee on Environmental Pollution, and floor manager of this complex and important legislation, I am grateful for the time and effort that went into its production. Our committee deliberations were marked by a high level of debate, deep involvement of individual members, and a spirit of constructive compromise.
I am especially grateful to the members of the subcommittee who chaired hearings in Washington and throughout the country. Senator ANDERSON travelled to Duluth and Alexandria, Minn., and Seattle, Wash.; Senators HART and WALLOP went to Ft. Collins, Colo.; Senator CULVER went to Le Mars, Iowa and was joined by Senator CHAFEE in New Orleans, La.; Senator STAFFORD conducted a hearing in Burlington, Vt. Each of them, by assisting in these hearings, made a comprehensive review of the Nation's water pollution control program possible.
The Subcommittee on Environmental Pollution was fortunate to have as new members, Senator ANDERSON and Senator CHAFEE — no members participated more in our hearings or contributed more to our markups.
I also express the appreciation of all of the members of the Committee on Environment and Public Works and to the staff. Without their help, we could not have accomplished so much.
Congress knew when it wrote the act in 1972, that its far reaching scope and long term goals would require periodic review. In anticipation of that need, the Congress authorized the appointment of a National Commission on Water Quality to study the implications of achieving or not achieving the 1983 requirements imposed by that act. The Commission study, which cost $17 million, provides valuable insight into the environmental and economic implications of the regulatory requirements which will be applicable at the beginning of the next decade.
Little contained in the study of the Commission could be construed as justifying major change in the direction established in 1972.
The Commission found the costs of achieving the 1983 regulatory requirements to be small and the benefits as substantial:
Additional price increases due to best available technology are smaller than due to best practicable treatment. Cumulative effects are predicted to average only 1.1 percent in 1985.
Generally the number of plant closures directly attributable to the regulatory requirements will be small. In many cases, they will be old, small, single plant firms that could not remain economically viable over the next decade regardless of water pollution requirements.
Benefits expressed only in economic terms will reach a level of at least $33.3 billion and as much as $88.1 billion by 1985.
The Commission identified significant gains for the environment from the investment in achieving the 1983 regulatory requirements. And the Commission pointed out that failure to proceed on the course directed in 1972 could eliminate many of the important water quality gains which will result from achievement of the 1977 requirements.
The hearings the committee conducted this year throughout the country and in Washington confirmed much of what the Commission study reported.
Russell Train, former Administrator of the Environmental Protection Agency, appeared before the committee and stated:
It has been approximately five years since the 1972 Clean Water legislation was enacted and a year since the submission of the report of the National Commission on Water Quality. Thus, the time is appropriate for undertaking a midterm review of the FWPCA to determine what, if any, legislative changes are needed.
Much of the testimony that the subcommittee will be receiving will doubtless focus on economic aspects of the program. Questions will be raised about cost effectiveness and these are important questions to address. However, I think it is critical that your review of the 1972 legislation emphasize above all the Act's stated objective to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." To restore the ecological integrity of our waters — to clean up our streams and rivers, our ponds and lakes, our harbors and estuaries — is surely one of the most inspired goals any nation ever set for itself ...
As a closing word, I will simply reemphasize the point I made at the outset: whatever revisions of the statute are considered — and I would hope these could be kept at a minimum — they should be considered in the context of how best they contribute to the overriding purpose of the statute, to restore and maintain the ecological health of our nation's waters. We must not be distracted from that objective.
And Thomas C. Jorling, Assistant Administrator for EPA's Office of Water and Hazardous Materials, appeared before the committee and said:
I am sure you have heard from previous witnesses, here and in other parts of the country about particular problems with the Act's implementation. It is a complex piece of legislation and there have been problems, but I want to strongly assert that despite the problems, the Act is working. It is gratifying to report that the great majority of industry will be in compliance with the 1977 requirements. Out of 4000 major industrial dischargers, an estimated 3,400 have complied with the deadline, and most of the remaining 600 are moving toward compliance. I think this stands as conclusive evidence of the basic validity and effectiveness of the Act's strategy for the application of uniform standards to point source discharges. Also, it is tribute to the ingenuity, dedication and good faith demonstrated by most of America's industry toward achieving water pollution control ...
Let me preface my comments in this regard by saying that EPA feels the Act is basically sound as a mechanism for advancing the nation's water pollution control program. The proposals being offered by the Agency are aimed at fine tuning the Act's provisions.
This bill focuses on several major program areas: the municipal program, the industrial program, toxics control, and nonpoint source control. I would like to highlight each of these areas.
MUNICIPAL PROGRAM
In 1972, the Congress recognized that growth of the major urban areas in the United States and the continued degradation of the rivers, streams, and oceans demanded adequate treatment of municipal pollution. The Congress authorized, through contract authority, $18 billion which, when matched, would provide $24 billion to help meet the pressing need of cleaning up the pollution from existing public sources.
The purpose was to provide funding to achieve the objectives of an earlier statute and an earlier program.
In order to achieve this objective, a regulatory program was established codifying EPA's requirement for secondary treatment of municipal wastes. A deadline of 1977 was established for achieving secondary treatment. Cleaning up the pressing backlog was given the highest priority.
But another priority was evident. Congress recognized that most sewage is fresh water and that many valuable nutrients are lost when fresh water contaminated with human sewage is discharged into the oceans and rivers. The same nutrients that cause lakes to eutrophy could be recycled and reclaimed. Thus, the law required programs which emphasized reclaiming and recycling sewage, conserving water, reusing valuable nutrients, and reducing flows.
Unfortunately, these three primary directions — providing adequate funding, addressing the backlog of unmet needs, and moving toward reclaiming and recycling wastewater — have been inadequately addressed and often ignored.
Half of the $18 billion of Federal dollars was impounded early in the program. Collector sewers, interceptor sewers, and treatment plants were approved even though their primary purpose was to meet new growth needs. Secondary treatment was defined without recognition of reclaiming and recycling alternatives.
The result is a municipal program which lacks uniformity and is in serious disarray. Many of the nation's large cities such as Philadelphia, New York, and San Francisco, still discharge raw or inadequately treated sewage into rivers, lakes, bays, and oceans. At the same time, oversized interceptors and new collectors are constructed in suburban areas in anticipation of development; and treatment plants are sized to accommodate that growth.
Small communities are overwhelmed by complex requirements, the result of which is construction of conventional systems which they do not understand how to operate and cannot afford to run. Alternatives exist but are not encouraged by the institutions and personnel involved. Thus, the committee found only one operating major land irrigation sewage treatment system in the U.S. It approaches self-sufficiency through the sale of a corn crop. This system achieves a level of treatment which exceeds drinking water quality.
With this background accumulated in hearings in small and large cities throughout the country, the committee addressed the municipal treatment program. The committee's objectives were to replenish funding; provide reasonable relief from specific regulatory requirements; reorient the direction of the program toward use of alternative technologies as required in the 1972 act; reestablish that the primary focus of the program is the backlog of needed facilities; reduce the costs to small communities; and reaffirm the requirement that the program be operated and maintained on the utility like basis.
FUNDING AND FEDERAL SHARE
One of the most pressing issues identified for the committee is the need for continued funding of the municipal construction grant program. Without additional funding for fiscal year 1977 and subsequent years—
At least nine States will not have sufficient funds to cover their need between now and September 30;
An estimated 20 States will run out of available funds by the end of October and 12 more would run out by January if they continued funding at normal rates;
State project planning for fiscal year 1978 through the priority list process will probably be deferred in many States until new funding is in hand, resulting in disruption to planned project scheduling;
States and localities will act to slow down project completions based on lowered estimates of funding;
States will be unable to develop funding strategies that ensure a good mix of planning, design, and construction projects for effective use of funds.
The National Water Quality Commission, the Administration, and most of the testimony before the Committee supported a long term commitment of Federal dollars to the construction of publicly owned treatment facilities needed to eliminate the backlog of needed waste treatment works in the Nation's communities. It is anticipated that the cost of eliminating that backlog is greater than $60 billion, of which at least $45 billion in Federal funds will be required under current grant policy.
The committee considered a 10 year, $4.5 billion annual authorization to provide for these needs, but decided that the responsibility of the Congress in exercising budgetary control taken together with the need to reexamine, on a periodic basis, the Nation's priorities, suggested only a five-year authorization at that level. By its action, the committee does not suggest that the 10 year program will not be forthcoming. The Senate Committee on Environment and Public Works will continue active oversight responsibility for this program to determine whether or not the public investments are sound, and whether or not the kinds of projects assisted by the act are, indeed, part of the country's waste treatment backlog or are intended for other purposes.
This bill also provides an additional year for the obligation of funds released under a Supreme Court order — so-called fiscal year 1976 funds. This extension of the reallotment date for these funds was approved for several reasons:
The release of the impounded fiscal year 1976 funds, the fiscal year 1976 allotment, was $9.0 billion, more than twice the level of any previous allotment;
At least five States and the District of Columbia are projected to lose funds to reallotment if the date is not extended — Connecticut, Maryland, Delaware, Washington, D.C., South Carolina, and Michigan;
In order to use available funds, a number of other States would be forced to bypass the highest priority projects to reach those lower priority, but eligible, facilities that are ready to proceed before September 30;
EPA policy is to use the scarce funds now available for treatment related projects only, except for health emergencies, and the current reallotment date prevents effective implementation of that policy.
The committee is concerned about the possibility that the current reallotment date, along with the general tendency to speed the flow of money, has had the effect of inducing the construction of poor projects, especially projects constructed with the inadequate consideration of alternatives to conventional treatment. The committee expects the Administrator to manage the program to avoid this result.
By its actions, the committee underscored the intention 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 with limited provisions for growth set forth specifically in the statute to recognize the cost effectiveness factors and to achieve a balance between the pressures for economic development and the need for environmental improvement.
In order to stress this point, the committee considered eliminating entirely the eligibility for Federal financial assistance of lateral collector sewers. The committee decided that many small communities with serious ground and surface water quality problems caused by inadequate or overcrowded septic systems needed some form of financial assistance. At the same time, the committee intends that funds for these systems not be available for any future capacity. And the committee expects the States and the Administrator to fund alternative waste treatment systems which do not rely on collection and central treatment.
The availability of a 75 percent Federal grant has encouraged the construction of collectors. 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.
The committee was 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.
In a county neighboring Washington, D.C., the Environmental Protection Agency, the State, and 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.
Again, to underscore that the purpose of the program is to reduce the backlog of future growth, the law 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.
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.
The Administrator may not approve a grant for a project primarily designed to deliver more waste to a receiving water. No collection system for an existing community can be approved unless there will be available when that collection system is completed, a completed secondary or high level treatment facility to treat the waste prior to its discharge into a receiving water.
This bill also restricts the Federal share of a treatment works to a 10 year reserve capacity and a 20 year reserve capacity for interceptor sewers. This restriction will reduce Federal contribution by about $2.5 billion and will also limit unnecessary oversizing of plants.
The committee recognizes that the total package of amendments in this measure which deal with the municipal construction grant program may have the effect of slowing down the pace of grant awards. However, because these changes encourage the examination of cost effective alternatives, efficient design for industrial contribution, and other factors to assure the proper use of Federal dollars, the committee feels that a slower pace is justified. This program is an environmental protection/water pollution control program, not a public works/jobs program, and steps must he taken to assure that the grants program is regarded as such.
ALTERNATIVE AND INNOVATIVE TECHNOLOGIES
The committee bill emphasizes the need to use alternative technologies that have been developed in place 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 100 percent grants for the development of innovative technologies. The bill also includes a provision for extension of deadlines for industries which use innovative technologies to meet the 1983 requirements.
The committee intends that all of those involved in implementing the program — the Environmental Protection Agency, States, communities, and consulting engineers — redirect the program away from the conventional collection and secondary treatment approach and toward the use of alternative technologies, especially those which rely on natural systems, 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 committee hearings focused on 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 committee 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.
The committee bill recognizes that sludge, which is a burden to many communities, can be usefully applied as a soil conditioner, as a nutrient, and as a fertilizer. But the bill 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. The committee adopted amendments to stop the waste of this important resource. The committee expects the Administrator 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. 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.
OPERATION AND MAINTENANCE EXPENSES
The committee discussed the issue of assuring proper operation and maintenance of municipal treatment systems with particular reference to the user charge question. The bill reaffirms the requirement of the 1972 act that operation and maintenance expenses be distributed in proportion to costs of operation and maintenance. The committee bill continues the policy that there be established a clearly identified revenue base for the operation and maintenance of municipal treatment facilities.
The committee considered testimony regarding the difficulties for some existing residential areas which do not have user charge systems to determine the exact usage of each recipient of the waste treatment service. To clarify any doubts, the committee bill includes an amendment which provides that meters are not required for existing users and that a flat rate or an ad valorem tax could be imposed as the flat rate or tax is proportional to use.
If the system of charges is based on something other than metering, the Administrator must require the applicant to establish a system whereby the necessary funds will be available for operation and maintenance of the treatment works. He also must require the applicant to establish a procedure to notify the residential user as to how much of his total payment will be allocated. to the operation and maintenance of treatment works.
This amendment recognizes the privilege of local governments to carry out their responsibilities under the act in a manner which is particularly appropriate to their citizens. The amendment allows such flexibility, while insuring that the goals of proportionality will be carried out.
A system of charges based on a flat fee per household or per plumbing fixture would be authorized under this amendment. A user charge system based on a flat fee for residential users would save communities the high cost of installation, maintenance and reading of meters.
Charges levied on residential users in the manner allowed by this amendment may be collected as part of the ad valorem taxes or by some other means. Funds so collected must be sufficient for the dedicated purpose of proper operation and maintenance of the treatment works. The amendment does not authorize a system which would allow these funds to be diverted to other uses within the municipality or withheld from the treatment works.
The proposed amendment requires the Administrator of EPA to impose restrictions on the applicant who establishes a charge system based on something other than metering. The intent of these restrictions is to address the reservations raised above. First, the amendment requires the applicant to establish a system which will ensure the funds necessary for the operation and maintenance of the treatment works. Such system could include a separate fund such as an escrow account. Second, the applicant is required under the proposed amendment to notify the individual user as to the costs paid by the individual for the operation and maintenance of the treatment works.
The committee believes that public knowledge of the cost of operation and maintenance of the treatment works to individual residential users will promote efficient management of the system and foster a public interest in water conservation and other measures to reduce flows and thereby reduce treatment costs.
This provision is a modification of the user charge provision of existing law, which requires that no construction grant for a municipal waste treatment facility may be made after March 1, 1973, unless the applicant has established a system of charges to insure that each user of the facility pays its proportionate share of operation and maintenance costs, including replacement of services provided by that facility.
As early as 1966, the problems associated with the operation and maintenance of federally financed waste treatment facilities were recognized. The major problem was the inability of municipalities to sustain the costs of operation and maintenance of facilities constructed with Federal grant money.
The committee reviewed the industrial cost recovery question and adopted changes which, while reaffirming the basic intent of the act, provide that industrial users should repay that portion of capital cost of the system attributable to their use. The purpose of industrial cost recovery is to avoid inequity through subsidy which creates a competitive advantage for an industrial plant discharging through municipal plants over those sources which must construct separate treatment works and pay the entire cost.
The limited changes would provide relief for industries which have conserved subsequent to joining a municipal system, allow industrial cost recovery payments to be used for program implementation and exempt certain small industries whose discharges are nontoxic.
DEADLINE EXTENSIONS AND MODIFICATIONS
The committee 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 agreed to establish and maintain an interim compliance schedule.
Of 12,500 treatment plants now in operation, 4,150 or one-third will meet the 1977 requirements of Public Law 92-500. These plants serve about 52 million persons. Plants that will not meet the deadline serve about 92 million persons. EPA has provided the following estimates as to ultimate municipal compliance:
Most facilities were operated out of municipal budgets and were thereby subject to municipal fiscal constraints. These constraints included legal limitations on the amount of general obligation debt, limitations on municipal tax sources and the taxing power of special districts, rapid increase of the demand for other public services, and reliance on additional burdens on property taxpayers to improve operation and maintenance.
The concept of "user charges" was originally proposed as a means of assuring that each Federally assisted facility would have adequate operation and maintenance funds. In this way, municipalities could employ their limited taxing powers in providing other forms of public services, and waste treatment facilities could be operated and maintained efficiently, thereby assuring adequate waste treatment services and the sound investment of Federal dollars.
Further examination of the user charge concept revealed additional benefits. A charge to the "consumer" based on cost of treatment, would be a positive force in encouraging more efficient management of wastes discharged through a municipal system as well as an economic inducement to reduce excessive use.
Under the committee amendments, greater flexibility will be provided for the assessment of user charges among residential users. The community may use water meters, flat rates, or ad valorem taxes, so long as the basic requirement of proportionality in the distribution of costs among each recipient of waste treatment services is assured. In adopting this amendment, the committee did not change the basic requirements of the law, the committee only provided more options to communities.
EPA estimates the cumulative number of facilities currently in operation that would achieve secondary or more stringent treatment levels:
[Table omitted]
Although there is no precise estimate of the number of present industrial hookups to municipal waste water systems, roughly 50,000 industries, most of which are relatively small, is an EPA approximation. Based on a survey this year of major industrial discharges 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 committee intends that no extension be granted and that enforcement actions be undertaken under section 309.
Some communities located along the Nation's oceans have argued that there is no need to require secondary treatment for municipalities which discharge into ocean waters. The committee 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 fresh water 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 rivers, lakes, and streams. But with respect to marine discharges, the committee has provided a limited exception.
The Administrator can, on a case-by-case basis, exempt a publicly owned waste treatment plant from the requirements of secondary treatment for marine discharges where a specific showing is made.
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.
Throughout its deliberative process, the committee sought to keep a basic objective: That the funds for the program must be replenished and must be provided over a sufficient period of time to allow communities to know what they can expect in order to meet what is expected of them; that the primary thrust of the program must be directed toward the backlog of untreated wastes; that the program must be redirected from its current emphasis on capital intensive conventional treatment systems toward those alternative systems which reclaim and recycle wastewater; that operation and maintenance must be on a utility basis; and that the States, the municipalities and the Federal Government must continue to operate this program in a shared relationship, with shared responsibilities.
INDUSTRIAL
With respect to the industrial program, the committee recognizes and applauds the significant success that most of the Nation's major industries have attained. And, for those who have begun, have made the investment in waste treatment facilities, have complied with the 1977 requirements, there will be significant economic as well as environmental benefits. There will be environmental benefit to receiving waters, 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, and competitive improvement as a result of the delayed compliance fee required by this act.
Ninety percent of the Nation's industries will meet the 1977 requirements of the 1972 act. A good portion of those who will not, will fail for what appear to be legitimate reasons. And about half of those who fail, according to Environmental Protection Agency, will not have complied because of lack of diligence, lack of good faith, or lack of interest in the success of this program.
The committee believes that a case has been made in our hearings on this bill 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 committee considered but rejected the alternative of providing a case-by-case extension of the deadline set out in the statute. That alternative was rejected because the committee felt that such a case-by-case extension would not only burden the administrative process but that it would 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), that 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.
With regard to the 1983 requirements for industries, the bill authorizes a case-by-case exemption for industries which demonstrate, to the satisfaction of the Administrator, that pollutants in their discharge are not toxic or harmful to the aquatic environment; that the pollutants discharged will not interfere with the attainment of the national water quality standard — defined as protection of public drinking water supplies, protection and propagation of a balanced population of fish, shellfish, and wildlife and allows recreational activities, in and on the water; that there are applicable water quality standards for each exempted pollutant; that the new limitation will not be less than required by best practicable treatment; and that the exemption would not be available for pollutants designated as toxic or hazardous pursuant to the act or the Safe Drinking Water Act.
This approach allows the discharger to demonstrate no adverse effect of pollutants in his discharge and have his requirement reduced.
1977 DEADLINES
Only a small percentage of sources within a few major industrial categories will be out of compliance with the 1977 requirements and subject to enforcement actions. Of 4000 major industrial dischargers, only 633 or 15 percent will fail to meet the deadlines. Of these, only 300
are candidates for enforcement. Of the remainder, more than 100+ are power plants awaiting 316(a) 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 overloaded 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. Two 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 a 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 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.
The Environmental Protection Agency has developed an enforcement strategy under current authority to initiate enforcement actions only against recalcitrant major dischargers. Dischargers who are going to 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 committee bill, essentially, codifies this policy.
A case-by-case extension through section 301 for industrial dischargers would be a variance. It would place a significant administrative burden on the resources of the Agency. EPA would have to determine bad faith before rejecting a variance, which determination would be subject to administrative procedures and judicial review. Because the action focuses on a particular "person" and is the modification of an effluent limitation, it requires a formal adjudicatory hearing. The determination is subject to judicial review.
This process is resource intensive and time consuming. According to EPA estimates adjudicatory hearings involving major dischargers require on the average, 86 days to review the request for a hearing, 157 days to publish public notice and allow time for intervenors, and 473 days until an adjudicatory hearing can be held.
Two examples of steel industry use of these procedures are instructive. A permit was issued to United States Steel in Gary, Ind., in October 1974. The final settlement was reached in April 1976. This was one that EPA pursued vigorously and moved quickly. The final resolution by the circuit court of appeals was wholly in the Agency's favor. The second case also involved United States Steel in its Monongahela works. There was no contest on the prescribed technology, just the actual limitations to be achieved. Yet this case, also resolved wholly in favor of the Agency, took 2 years and consumed 5 percent of enforcement resources during that time — 25 man-years. During that period, two other steel plants in the same area installed the technology.
A good faith variance would create a new layer of review. If the industry did not like the variance decision, it would adjudicate it. During the period of adjudication, it would seek a stay from the requirement. EPA would have to prove "bad faith" through every step of a cumbersome process.
Although there occasionally are cases in which the discharger's inability to comply is clearly due to factors beyond its control, the majority of cases require extremely subjective judgments. In such cases, an Agency denial would almost certainly be followed by an appeal to the court of appeals, thus delaying Agency enforcement efforts. There is adequate opportunity for judicial review in Federal district courts in an enforcement action. The committee bill maintains this opportunity.
The legitimate concerns of those industrial dischargers who cannot comply with their pollution abatement requirements by July 1, 1977, through no fault of their own, is adequately handled by the committee bill. Such dischargers are further protected against any unjustified enforcement action by their ability to present their good faith as a mitigating factor to the district court which controls any enforcement action which may be brought.
The industry with the greatest rate of noncompliance with the 1977 requirements is iron and steel: 46 percent. It is also one of the industries with a major discharge of toxic and non-degradable pollutants. Normal constituents include phenols, cyanide, fluoride, chromium, nickel, and lead. Although the 1977 requirements are not geared directly to toxics, they will achieve a substantial reduction of all materials within the iron and steel industry dischargers. Continued
litigation and delay would mean that these discharges would continue unabated until final judicial resolution first of the variance, and then, if necessary, of the ensuing enforcement order.
T0XICS/1983 REQUIREMENTS
While the committee found little disagreement over the need to regulate toxic discharges to the Nation's waters, some controversy exists over the best mechanism with which to regulate toxics.
The committee decided that the 1983 requirements 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 1983 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.
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 a completely new section, would only cause confusion and add still more delay to efforts to solve the toxics problem. The discharge of toxic pollutants in toxic concentrations 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 that strategy be maintained.
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. PCB's, the most studied and the most prevalent, are good examples. The cancer risk from breast feeding has been placed at approximately 10 times than that from consumption of saccharin, due to the levels of PCB, DDE, dieldrin, and others, according to the environmental defense fund. Salmon in the Great Lakes have been found with 10.45 ppm and lake trout with 22.91 ppm of PCB's — twice and four times the Food and Drug Administration's tolerance levels. Since these are sports fish, they are not screened by the FDA and are routinely eaten. The herring gull is failing to reproduce in the Great Lakes region because of PCB's and Mirex, a chemical cousin. And another study found that between 41 percent and 45 percent of the U.S. population has at least 1 part per million of PCB's concentrated in human tissue.
It is imperative that these materials be controlled. The1977 requirements have made a beginning
but much more is required. Early data indicates substantial toxics remaining after BPT. In iron and steel, there are benzene, napthalene, and phenolics. Leather tanners are discharging 60,000 pounds/year of chrome and 130,000 pounds/year of phenols; in petroleum refining, those numbers rise to 400,000 pounds/year, and 180,000 pounds/year, respectively. Timber processing discharges cadmium, benzene, toluene, and PCP.
The National Commission on Water Quality did only limited work on toxics in its environmental study but its findings also were disturbing.
Based on their review of 41 study sites, the Commission reported that two major categories of recognized toxics, heavy metals — including mercury and cadmium — and pesticides, were the most commonly observed. Concentrations of one or more of the heavy metals commonly exceeded suggested safe limits in the water column or in fish tissue at 17 sites — 41 percent. At an additional 12 sites, heavy metal concentrations sometimes exceeded safe limits or were evident in high concentrations in bottom sediments. Six sites — 15 percent — were found to have no problems with heavy metals, while detailed data were not presented for six sites. The most commonly cited heavy metals were mercury, zinc, lead, manganese, and iron. Major sources of heavy metals cited included industrial point sources, urban runoff and mine drainage.
Pesticide concentrations commonly exceeded suggested safe limits or were linked with fish kills at nine sites — 22 percent — in recent years. Presence of pesticides at an additional five sites were noted as being sometimes above safe levels. Low concentrations of pesticides appeared at 7 sites — 17 percent — and detailed data were not available for the remaining 20 sites — 49 percent. The most commonly cited pesticides were DDT, dieldrin, and Heptachlor. Runoff from agricultural land was cited as the major pesticide source at eight of the problem sites. Forested and urban land runoff was noted as a contributing source at a number of sites.
Other toxic substances were detected at a number of sites. Polychlorinated biphenyls — PCB's — were noted as exceeding safe concentrations in fish tissue and sediments at five sites, all associated with industrialized areas. Phenols linked with industrial discharges were cited as possible toxics at seven sites.
The committee reaffirmed the commitment made in 1972 to achieve a second phase of technology based controls on industrial point sources aimed at toxic and other exotic 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 with great interest.
These requirements were a primary focus of the National Commission on Water Quality, and were the subject of panels in hearings in Duluth, Seattle, New Orleans, and Washington, D.C. The committee was impressed by the testimony of Dr. Robert Harris of the environmental defense fund, and Dr. Edwin Gee of the duPont Co., who appeared together on a panel in Washington, D.C. on June 23. They each spoke persuasively of the urgent need to limit or eliminate the dispersal of toxic or unknown materials into the aquatic environment.
Senator CHAFEE pursued the question of the most appropriate mechanism for controlling toxic pollutants, particularly the use of case-by-case controls on specific substances versus industry wide application of best available technology. Dr. Harris replied:
... I think the current strategy of course is instead a prohibition of discharge where needed; PCB was mentioned as one example of the very persistent biochemical type of chemical which poses a substantial threat to the public which should be banned from commerce and there should be no discharge of this chemical in the water. There are other toxic substances for which we have enough information that we can justify setting threshold effects, if you will, or concentrations which would represent safe concentrations to the aquatic environment, to the humans consuming that water, and there are other toxic substances for which we don't have that amount of data which practically necessitates that they be controlled through a best available control technology together with their potential toxic effects and economic impacts.
I believe that is all of these approaches being used now under the existing Act and I believe to the extent that I think there is some agreement among us on that, that is how I interpret what is needed ...
... That is what we are doing, I think right now, through the BAT requirements. So I would support that. I think maybe I would disagree, and Dr. Gee can respond to this, in fact we do disagree, that it should not be done on a case-by-case basis, BAT determined on a case-by-case basis.
That is really getting into the pitfalls that led us to issuing the Act in the first place. Clearly, I think there is a need for industry wide standards that can be justified for best available control technology and regulations of toxic pollutants.
You get into the problem of obviously when you go another route of blackmail. If you require us in this case to clean up toxics, we will move somewhere else where the standards are not as stringent. I think is something we ought to avoid.
Dr. Gee then responded to the same line of inquiry:
I am basically in agreement with what Mr. Harris said. I ought to preface my remark and say that I do think he performs, his organization, an important social service in bringing to the attention of society the kind of thinking that he has here today of trying to point our potential hazards that we can look at and try to do something about.
I doubt that enough of that has been done in the past. We perhaps differ on this last point on my emphasis on the case-by-case basis in the treatment of toxics because it is a very large, very complicated list.
We are already removing many toxics. We are using biochemical decomposition; we are using salt extraction, carbon absorption, stream stripping, and if you really want to take these toxics out, first you have to decide are they there, what are they; then you take the procedure to take them out.
Use the shotgun, your opportunity of getting all of them is reduced. I think it is important that wherever we have the knowledge, we use it; wherever we don't, I am completely in agreement with Mr. Harris, we ought to go to best available treatment.
Control of toxics is the major, but not the only, reason the committee maintained the 1983 requirements based upon the best available technology requirement in the law. After achievement of the 1977 requirements, there is still a need to control conventional pollutants. Twenty percent to 34 percent of the Nation's waters will not be suitable for game fish populations; east of the Rockies, that percentage is 32 percent to 49 percent.
Furthermore, according to the National Commission on Water Quality, growth will at least double the discharge of conventional pollutants if only the 1977 requirements and new source performance standards are used. And industrial sources are still projected to account for about half of the BOD loadings after the 1977 requirements are achieved.
It has often been argued that after the 1977 requirements are achieved, the major problem will be non-point sources. This is generally true, but those loadings do not usually create serious water quality problems because they occur at time when flows are extremely high. For example, during Hurricane Agnes, dissolved oxygen readings for the Potomac River were over 8 mg/1, approaching saturation, even though enormous amounts of BOD was reaching the water.
The National Commission on Water Quality recommended that Congress postpone the best available technology requirement for a sufficient period of time to determine the receiving water quality impact of compliance with the best practicable technology requirements for 1977. The Commission based its recommendation on studies which seemed to suggest that the national goal of water quality which would protect balanced indigenous populations of fish, shellfish, wildlife, and other aquatic life throughout their ecological cycle would be achieved with the 1977 requirements. The Commission projections were based on the anticipated improvements in the dissolved oxygen content of water as a result of the application of best practicable technology.
The committee did not challenge the judgment of the Commission with respect to dissolved oxygen even though no national water quality criteria has yet been published. The committee recognizes that any particular level of water quality would be dictated by the particular location, the particular species and the particular activity in which that species was involved. Thus, higher levels of dissolved oxygen would be required in areas in which fish propagation is occurring or more susceptible elements of stream life on which fish depend for survival are going, than might be the case in other areas.
The committee did determine that, in fact, it was possible that the best available technology requirements might result in the application of excessive controls to certain kinds of conventional pollutants for which sufficient information was available to make a judgment as between a particular discharge and a particular receiving water quality. Where that judgment could be made, the committee felt that it was appropriate that relief should be provided. The committee was particularly concerned, however, that such a waiver not be extended to those pollutants for which significant knowledge has not been accumulated.
The Administrator is expected to expedite these determinations. Whenever he determines that there is substantial likelihood that a petition for a waiver will not prevail on the merits, the committee expects the Administrator to reject the application so that the process of compliance can begin.
The committee is aware of the administrative and judicial implications of case-by-case extensions and case-by-case exemptions from 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 power plants 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 power plants. There is no basis for that decision in the law. The committee does not expect, however, that the Agency will not impose any additional 1977 requirement other than State water quality standards. 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 or effluent limitations, as specifically set forth in section 510 of the act.
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 waivers of this act would be disastrous to this program. The committee expects 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 fish, shellfish, and wildlife, and provides for recreation, in and on the water. Only in this way can these waivers 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.
OTHER REGULATORY PROGRAMS
In 1972, the Congress made a clear and precise distinction between point sources, which would be subject to direct Federal regulation, and non-point sources, control of which was specifically reserved to State and local governments through the section 208 process.
The committee hearings focused on the progress of the 208 program methods developed for non-point source control, and the relationship of the regulatory program under 402 and 404 to the section 208 program, with a specific view as to the way water pollution programs related to agriculture.
Between requiring regulatory authority for non-point sources, or continuing the section 208 experiment, the committee chose the latter course, judging that these matters were appropriately left to the level of government closest to the sources of the problem.
But that should not be interpreted as a lack of concern of the committee. The committee clearly intends 208 to produce specific non-point source abatement programs and will review the program as more plans are completed.
The $150 million authorization for section 208 for fiscal year 1978, 1979, and 1980 will be used to support the continuing development of water quality management plans and programs that are needed to attain the national goals for 1983. The committee recognizes that the requirements of section 208 provide the primary means for the control of non-point sources of pollution, and expects EPA to direct the funds authorized under this section towards assisting in the development of effective non-point source control programs.
In addition, the planning and development of regulatory mechanisms can be used for a large number of problem categories — urban industrial problems such as municipal facility planning, pretreatment, sludge disposal, and urban runoff, and efforts in the area of water conservation and reuse.
The States and EPA should carefully evaluate the success of initial work by designated areawide agencies. The committee expects that continuing funding of any 207 agency will be given to those agencies which have demonstrated the ability to carry out their plans, and have the capability to deal with future priorities and problems.
Proper and effective use of these 208 funds has the potential for identifying significant cost savings in municipal and industrial facility investment.
AGRICULTURE
Agriculture was demonstrated to be a major source of pollution. The current strategy in the act to divide agriculture into point and non-point sources is effective with regard to feedlots, but ineffective with regard to irrigation return flows. Yet the threat of direct regulation by permit has moved farmers and the farm service community into a willingness to work with the section 208 areawide process, recognizing the advantage of locally initiated regulatory programs.
In most instances, the section 208 "best management practices" are not actual abatement programs, and interim strategies need to be developed. Section 208 offers the potential for abatement programs to control both irrigation return flows and non-point source agricultural runoff, and the committee considered several proposals to pursue this proposal.
For these reasons, the committee adopted several amendments which generally concern section 208 and specifically relate to agriculture. First, the committee renewed funding for section 208 planning and plan implementation. This is necessary to continue the work that has begun. Unfortunately, like other Public Law 92-500 programs, initial implementation of section 208 was slow. Few plans are completed, and accordingly the committee also extended completion deadlines.
Secondly, the committee exempted irrigated agriculture, defined under the act as a point source, from the 402 permit program and included it within the 208 program.
Third, the committee examined a variety of ways to strengthen the implementation of the 208 program, so that it would become a meaningful non-point source abatement mechanism. The committee provided an opportunity in its consideration of the section 404 issues for States to develop an approvable 208 regulatory program for specified activities. Approval through this process would remove those activities from direct Federal control.
DREDGE AND FILL PERMIT PROGRAM
There has been considerable discussion of the provisions of section 404 of the act, much of which has been related to the suspicions and fears with respect to that section, and little of which has been related to substantive solutions to real problems while providing an adequate regulatory effort to assure some degree of wetlands protection. There is no question that the systematic destruction of the Nation's wetlands is causing serious, permanent ecological damage. The wetlands and bays, estuaries and deltas are the Nation's most biologically active areas. They represent a principal source of food supply. They are the spawning grounds for much of the fish and shellfish which populate the oceans, and they are passages for numerous upland game fish. They also provide nesting areas for a myriad of species of birds and wildlife.
The unregulated destruction of these areas is a matter which needs to be corrected and which implementation of section 404 has attempted to achieve. The upland farming, forestry and normal development activity carried out primarily by individuals and as a part of family business or family farming activity need not bear the burden of an effort directed primarily at regulating the kinds of activities which interfere with the overall ecological integrity of the Nation's waters.
At the same time, these activities cannot be fully ignored. Without question, they should not and cannot be regulated by the Federal Government. Equally without question, there should be a degree of discipline over the extent to which these activities destroy wetlands or pollute navigable waters. The committee bill addresses these questions and tries to deal both with the institutional method for reducing the impacts of this program and also maintain a program of effective wetlands protection.
Section 208, the 1972 act's laboratory for new institutional control mechanisms for vexing non-point source problems, is undoubtedly the logical element for dealing with this and other similar problems. It may not be adequate. It may be that the States will be reluctant to develop the control measures and management practices which protect upland wetlands and navigable waters, and it may be that sometime in the future a Federal presence can be justified and afforded.
But for the moment, it is both necessary and appropriate to make a distinction as to the kinds of activities that are to be regulated by the Federal Government and the kinds of activities which are to be subject to some measure of local control. The distinction does not necessarily need to be limited to the waters into which the discharge occurs so much as the kind of discharge which occurs, whether or not it is point source or non-point, whether or not it is major or minor, whether or not it is a conventional activity or a major change in the use of an area.
The committee bill includes a provision which utilizes existing legislative mechanisms, and maintains the primary thrust of section 404 with respect to protection of wetlands from spoil and fill discharges where wetlands protection is an important public need. At the same time, the bill tries to free from the threat of regulation those kinds of manmade activities which are sufficiently de minimus as to merit general attention at State and local level and little or no attention at the national level.
The bill intends to develop a better response from the States with respect to the development of better management practices for non-point sources and de minimus point sources. The proposal would permit the degree of exemption from the section 404 program to be determined by the States as opposed to the courts, as is currently the case when there is a dispute between the regulator and the potentially regulated. By the act of assuming the regulatory program under section 208, the State can define those covered by State best management practices, the effect of which, if approved by EPA, will be a specific, precisely defined exemption from section 404. And at the same time, the public will benefit from the hoped-for improvement in the manner in which polluting activities are carried out in order to reduce the discharge of effluents and improve the quality of water.
The provision solves most real problems with section 404 by providing general delegation authority to the States; by specifying exempt activities; and by bringing the program under the general procedures of section 402.
OIL AND HAZARDOUS SUBSTANCES
The committee made 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.
The committee considered amendment 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 from 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 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. The ceiling served no useful purpose, inadvertently subsidizing large tankers and thus enhancing their competitive position over smaller vessels. According to testimony, the $150 per ton 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 committee also established a maximum liability for small vessels carrying oil as cargo of $150 per gross ton or $500,000 whichever is greater. Again, 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 the most costly. The per ton limit on smaller vessels is not adequate to provide liability commensurate with the costs of cleanup which have been experienced with such spills.
The committee was 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 clean up 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.
In addition, the committee has adopted a provision which assures that 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 committee has extended the jurisdiction of section 311 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, underscore 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.
Finally, the committee approved 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 is an important protection for these natural resources, and this particular provision is fashioned after a similar one in the Deepwater Ports Act.
ISSUES BEFORE THE COMMITTEE
The committee specifically reviewed every legislative issue which has been raised to the committee, either in the form of an introduced Senate bill, as a proposal from the Environmental Protection Agency, as a provision of the House-passed bill, H.R. 3199, or as a specific recommendation to the committee in the hearings. I ask unanimous consent to have printed in the RECORD at this point a list of all the issues considered by the committee during its markup of this bill and their ultimate disposition. Those issues which are not included in S. 1952 were specifically considered by the committee and determined not to be included.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
INCLUDED IN S. 1952 OR REPORT
Federal Facility Compliance.
State Certification.
Enforcement of POTW Permits.
Authorizations.
Allotment.
Eligible Categories.
User Charges.
Secondary Treatment Waiver.
BAT Waiver.
Oil & Hazardous Substances.
Delayed Compliance Penalty.
1977 Industrial Extensions.
Combined Step 2 & 3.
1977 Municipal Extensions.
State Reports.
Industrial Cost Recovery.
Reserve Capacity.
Sludge Disposal.
EPA Issuance of Permits.
Section 404.
Cost Effective Guidelines.
Pretreatment.
Reallotment.
Estuarine Study.
Aquaculture Permits.
208 Deadlines.
Interagency Agreements.
Operator Training.
Training Grants.
Enforceable Priority.
Water Conservation.
R&D Projects.
Compliance with State Requirements.
National Water Quality Standard.
Sludge Utilization Study.
Combined Sewer Overflow Study.
Contract Enforcement.
BAT Extension for Innovation Technology.
Set aside for Alternative Systems.
Procedures for Modifications.
Check Off for Innovative Systems.
Irrigation Return Flows.
Best Management Practices for Industry.
Marine Sanitation Devices.
Clean Lakes.
Individual Systems.
Agricultural Cost Sharing.
Alaska Village Study.
Exemption for Seafood Processing.
Exemption for Rum Distillers.
NOT INCLUDED IN S 1952
Sewage Collection Systems.
Reimbursement.
Priority Lists.
Buy America.
Financial Disclosure.
Deer Island Relocation.
Deputy Administrator for Engineering.
Urban Pass Through.
Flow Reduction.
Phosphates in the Great Lakes.
Judicial Review.
Corps of Engineers Management of Grant Program.
Mr. MUSKIE. Mr. President, I ask unanimous consent to have printed in the RECORD a section-by-section summary of S. 1952.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
SUMMARY OF PROVISIONS OF CLEAN WATER ACT OF 1977
AUTHORIZATIONS
This section provides authorizations for EPA's nonresearch operating programs for fiscal years 78, 79, and 80.
ESTUARINE STUDY
This section amends section 104, Research, Investigations, Training and Information, to permit the estuarine report to be submitted every six years instead of every three years.
CLEARINGHOUSE FOR ALTERNATIVE TREATMENT
This section amends section 104, Research, Investigations, Training, and Information, to establish a national clearinghouse for the collection and dissemination of information developed on alternative treatment technologies.
CHECKOFF FOR INNOVATIVE SYSTEMS
This section amends section 105, Grants for Research and Development, to allow up to ½ of 1%, of a State's construction grant allotment to be used for paying the non-Federal share of a project utilizing innovative treatment technologies.
ASSISTANCE FOR RESEARCH AND DEMONSTRATION PROJECTS
This section amends section 105, Grants for Research and Development, to authorize grants for operation and maintenance costs of an EPA funded research and demonstration project to reduce those costs to those comparable to a conventional secondary treatment system.
PRIORITY LIST REQUIREMENTS
This section amends section 106, Grants for Pollution Control Programs, to require that State priority lists reflect the enforceable requirements of the Act.
TRAINING GRANTS
This section amends section 109, Training Grants and Contracts, to increase the limit of a grant for a training facility from $250,000 to $500,000, and to exempt any such grant from the requirements of section 204.
RURAL VILLAGE STUDY
This section amends section 113, Alaska Village Demonstration Project, to authorize a study for the development of a comprehensive program for adequate sanitation services in Alaska villages.
REALLOTMENT
This section amends section 205, Allotment, to extend the period of availability of sums made available during FY 76 to September 30, 1978.
CONSTRUCTION GRANT PROGRAM
This section amends section 207, Authorization, to authorize $3.5 billion for the municipal construction grant program for FY 77, and $4.59 billion for each of the fiscal years 78, 79, 80, 81, and 82. This section also provides for the allotment of these funds.
AREAWIDE PLANNING
This section amends section 208, Areawide Waste Treatment Management, to provide that each Statewide planning agency shall have three years for completion of their plan. This section also provides that each initial planning grant shall be 100% and further grants shall be 75%.
INDIVIDUAL SYSTEMS
This section amends section 201, Purpose, to permit grants for construction of privately owned treatment works where a public body applies for such grant on behalf of a number of such units and will assume that such treatment works are properly operated and maintained, and where such service is more cost effective than collection and central treatment.
RESERVE CAPACITY
This section amends section 201, Federal Share, to restrict the amount of reserve capacity which is eligible for Federal funding to 10 years for the treatment works and 10 years for sewers and associated appurtenances.
CONTRACT ENFORCEMENT
This section amends section 203, Plans, Specifications, Estimates and Payments, to authorize the award of a combined Step 2 and Step 3 grant in the case of a treatment works costing less than $2 million which will serve a population of 25,060 or less. In States which have unusually high construction costs, the grant may be increased to $3 million.
CONTRACT ENFORCEMENT
This section amends section 203, Plans, Specifications, Estimates and Payments, to make EPA a party to construction contracts to ensure enforceability of contract.
METERING
This section amends section 204, Limitations and Conditions, to permit the use of something other than metering, including ad valorem taxes, for the collection of user charges from residential users of waste treatment services. If metering is not used, there must be assurance of adequate funds for operation and maintenance of the treatment works, and each user must be notified as to the amount to be used for such costs.
WATER CONSERVATION
This section amends section 204, Limitations and Conditions, to permit a proportional reduction of industrial cost recovery payments as the industrial user reduces his flow to the system..
INDUSTRIAL COST RECOVERY
This section amends section 204, Limitations and Conditions, to permit the exemption of small discharges (less than 2,500 gallons a day) from industrial cost recovery requirements.
STATE MANAGEMENT ASSISTANCE
This section amends section 205, Allotment, to authorize reservation of up to 2% of a State's construction grant allotment, but no less than $400,000, for use by the State in administering any aspects of the construction grant program. Such funds may be increased to assist in the administering of the 402 permit program, statewide 208 planning, and responsibility for managing construction grants for small communities.
SET ASIDE FOR ALTERNATIVE SYSTEMS FOR SMALL COMMUNITIES
This section amends section 205, Allotment, to require the setting aside of between 5 percent and 10 percent of construction grant funds alloted to a rural State (States with a rural population of 28 percent or more of the total population of the State) for use only for alternative or unconventional systems for communities of 2,500 or less. Non-rural States may request, through the Governor, a set aside of up to 10 percent of its grant allotment to be used for such purposes.
IRRIGATION RETURN FLOWS
This section amends section 208, Areawide Waste Treatment Management, to specifically exempt discharge from irrigation return flows from the 402 NPDES permit program, and to add irrigation return flows to the 208 program.
AGRICULTURAL COST SHARING
This section amends section 208, Areawide Waste Treatment Management, to authorize funds for use by the Secretary of Agriculture in cost sharing programs to implement best management practices on agricultural non-point sources of pollution.
GRANT ELIGIBLE CATEGORIES
This section amends section 211, Sewage Collection Systems, to eliminate from eligibility the construction of treatment works for the control of discharges from separate storm sewers, the replacement or rehabilitation of a collection system unless necessary to correct excessive infiltration, and the construction of a new collection system unless the grant is limited to existing population, there is or will be treatment capacity, to serve the system, the system is necessary to protect ground or surface water supplies or to attain water quality standards, and the alternatives have been proved less cost effective.
COST EFFECTIVENESS GUIDELINES
This section adds a new section 213 to require that cost effectiveness guidelines must provide for the identification and selection of cost effective treatment alternatives.
WAIVER FROM BEST AVAILABLE TECHNOLOGY
This section amends section 301, Effluent Limitations, to provide for a waiver from best available technology for a pollutant for which there is a water quality standard as long as the modification is at least best practicable technology, will not require additional controls on any other source, will not interfere with the attainment or maintenance of the national water quality standard, and presents a reasonable cost for level of reduction achieved.
WAIVER FROM SECONDARY TREATMENT
This section amends section 301, Effluent Limitations, to provide for a waiver from the secondary treatment requirement for any conventional pollutant in a discharge into marine waters from existing municipal sources if it can be shown that the modification will not interfere with protection of public water supplies and the attainment or maintenance of the national water quality standard, will not require additional controls on any other source, assures enforcement of all applicable pretreatment requirements, and assures that there will be no substantial increase in the volume of the discharge.
MUNICIPAL TIME EXTENSIONS
This section amends section 301, Effluent Limitations, to permit a case-by-case modification of the July 1, 1977 deadline for publicly owned treatment works up to July 1, 1983, where construction cannot be completed or where Federal funds have not been made available. Such modification is available to dischargers into the system if such dischargers have been found to have acted in good faith.
PROCEDURES FOR MODIFICATIONS
This section amends section 301, Effluent Limitations, to establish the procedures for obtaining a waiver from secondary treatment and best available technology.
INNOVATIVE TECHNOLOGY
This section amends section 301, Effluent Limitations, to permit a two year extension of the best available technology requirement for sources utilizing innovative technology.
INFORMATION AND GUIDELINES
This section amends section 304, Information and Guidelines, to require publication of water quality criteria to implement the national water quality standard.
BEST MANAGEMENT PRACTICES FOR INDUSTRY
This section amends section 304, Information and Guidelines, to permit the control, through best management practices, of ancillary industrial activities which contribute toxic pollutants to the navigable waters.
INTERAGENCY AGREEMENTS
This section amends section 304, Information and Guidelines, to authorize $500,000,000 for fiscal years 79-83 for interagency agreements to encourage the use of expertise in other Federal agencies.
STATE REPORTS
This section amends section 305, Water Quality Inventory, to permit the submission of State water quality reports every two years instead of every year.
TOXIC POLLUTANTS
This section amends section 307, Toxic and Pretreatment Effluent Standards, to revise the procedures for establishing and publishing a toxic pollutant and extend the period for compliance from one to up to three years as long as there is no significant risk to public health, public water supplies, or the environment.
PRETREATMENT
This section amends section 307, Toxic and Pretreatment Effluent Standards, to provide a mechanism for EPA enforcement of pretreatment standards for pollutants which pass through or interfere with municipal treatment processes or contaminate sewage sludge.
TECHNICAL AND CONFORMING AMENDMENTS
This section amends section 309, Federal Enforcement, to ensure the enforceability of permits issued under section 318 (aquaculture) and section 405 (sewage sludge).
1977 INDUSTRIAL DEADLINES
This section amends section 309, Federal Enforcement, to provide two new enforcement options for violations of the 1977 best practicable technology requirement for industrial dischargers. The first option authorizes the issuance of an enforcement order requiring a "reasonable" time for compliance, reserving the 30 day requirement for violation of operation and maintenance requirements and interim compliance schedules. The second option authorizes up to an 18 month extension of the 1977 deadline where the Administrator finds that the discharger acted in good faith; that a serious commitment to achieve compliance had been made; that compliance will occur no later than January 1, 1979; that the extension will not impose additional controls on other sources; that an application for a permit was filed before December 31, 1974; and that the necessary abatement facilities are under construction.
MITIGATION COSTS
This section amends section 311, Oil and Hazardous Substance Liability, to permit the expenditure of funds from the Contingency Fund for the purpose of mitigating the effects of a spill of a nonremovable hazardous substance.
OIL SPILL LIABILITY
This section amends section 311, Oil and Hazardous Substance Liability, to extend the jurisdiction under this section out to 200 miles; to raise the limits of liability for cleanup of oil spills from vessels to $150 per gross ton or $500,000, whichever is greater; to raise the limits of liability for cleanup of oil spills from onshore and offshore facilities to $50 million; to authorize the use of Contingency Funds for protection against threatened discharges; to permit immediate recovery of cleanup costs from oil cargo vessels or oil storage or handling facilities in the event of allegations of third party fault, reserving rights of subrogation; and to permit the recovery of costs expended by the Federal or a State government in restoring or replacing natural resources damaged by an oil spill.
MARINE SANITATION DEVICES
This section amends section 312, Marine Sanitation Devices, to (1) require the EPA Administrator to prohibit the discharge of treated sewage from vessels in drinking water intake zones, upon an application of a State and (2) to require the Administrator to amend current marine sanitation device regulations for commercial vessels on the Great Lakes and navigable waters other than coastal waters to require said devices, within a time period to be determined by the Administrator, to produce an effluent, at a minimum, of a quality of secondary treatment; and that such vessels be required to treat greywater also.
FEDERAL FACILITY COMPLIANCE
This section amends section 313, Federal Facilities Pollution Control, to assure that all Federal activities comply with all Federal, State, interstate and local requirements.
CLEAN LAKES
This section amends section 314, Clean Lakes, to require the Administrator to provide financial assistance to the States to prepare surveys to identify and classify freshwater lakes and to issue biannually information to the States on methods and procedures to restore and enhance freshwater lakes. Section 314 is further amended to authorize $450,000,000 for fiscal years 1978, 1979,and 1980 for the Clean Lakes program.
AQUACULTURE
This section amends section 318, Aquaculture, to assure that permits issued under this section are consistent with section 402.
NONCOMPLIANCE FEE
This section amends section Title III of the Act by adding a new section 319. Any point source (other than a publicly owned treatment works) not in compliance with the effluent limitations and compliance date in its permit, shall be required to pay a fee equivalent to the economic value of noncompliance. The payment shall be imposed automatically for sources out of compliance with the 1977 requirements or applicable new source, toxic or thermal limitations beginning on July 1, 1979, and for sources out of compliance with the 1983 requirements beginning on January 1, 1984.
COMPLIANCE WITH STATE REQUIREMENTS
This section amends section 401, Certification, to assure compliance with all State requirements.
EPA ISSUANCE OF PERMITS
This section amends section 402, National Pollutant Discharge Elimination System, to permit EPA to issue a permit where a State issued permit is inadequate.
ENFORCEMENT OF MUNICIPAL PERMITS
This section amends section 402, National Pollutant Discharge Elimination System, to permit the EPA to enforce against a violation of a municipal permit.
DREDGE AND FILL PERMIT PROGRAM
This section amends section 402, National Pollutant Discharge Elimination System, section 404, Dredge and Fill Permit Program, and section 208, Areawide Waste Treatment Management, to modify the existing program for controlling the disposal of dredged and fill material. The bill amends section 402 to provide a mechanism for approving permit programs of States for controlling disposal of dredge and fill material which meet their particular needs. Section 404 of the Act is amended to provide specific exemptions from any permit requirement for certain activities. The amendment also provides for the use of general permits as a mechanism for eliminating the administrative burdens and delays associated with this program.
A third provision amends section 208(b) (4) to provide that the placement of fill material associated with activities which a State chooses to regulate by requiring best management practices under that section, is also exempt from any permit requirement under section 404 or 402.
The National Wetland Inventory is required to be completed by December 31, 1978, and $6,000,000 is authorized for that purpose.
SLUDGE DISPOSAL
This section amends section 405, Disposal of Sewage Sludge, to assure that permits issued under this section are consistent with section 402.
COMBINED SEWER OVERFLOWS
This section amends section 516, Reports toCongress, to authorize a study by EPA on combined sewer overflows in municipal treatment works.
UTILIZATION OF TREATED SLUDGE
This section amends section 516, Reports to Congress, to authorize a study by EPA on the use of municipal effluent and sludge for agricultural and other purposes.
Mr. MUSKIE. Finally, Mr. President, I would like to extend special appreciation to the staff who worked long and hard with us to fashion this legislation, see it through markup and bring it to the floor.
We are all grateful for their help.
I ask unanimous consent to include the staff members at this point in the RECORD.
There being no objection, the list was ordered to be printed in the RECORD, as follows :
STAFF MEMBERS
Leon Billings, John Freshman, Sally Walker, Phil Cummings, John Yago, Jackie Schafer, Bailey Guard, Jim Range, Mimi Feller, Mike Morgan, Demming Cowles, Bob Van Huevelin, Len Stewart, Dick Oshlo, and Mike Naeve.
Susan Martel, Peter Gove, Marcia Johnson, Lee Rawls, Judy Parente, Peggy Nagel, Frankie Williams, Debbie Canavan, Maggie Meyer, Joan Ramsey, Julie Devlin, Pat Underwood, Zoe Tierney, Jerry Cohen, and Dick Harris.