August 4, 1977
Page 26770
Mr. JACKSON. Would the Senator yield?
Mr. MUSKIE. I am happy to yield to the junior Senator from Washington State.
Mr. JACKSON. I was very pleased to note that the Environment and Public Works Committee addressed the important question of modifications to secondary treatment requirements, especially as it relates to discharges into marine waters.
As the Senator from Maine knows so well, Senator MAGNUSON and I have long felt that action needs to be taken to relieve Seattle Metro of the burden of moving to secondary treatment of their four treatment facilities which discharge into deep, saline waters of Puget Sound.
While there is no argument as to Seattle Metro's intent to maintain our water quality in accordance with the fishable, swimmable goals of Public Law 92-500, neither do they want to be slapped with a potential bill of $150 million — the costs of moving to secondary treatment — without there being some significant benefit in water quality. Extensive studies conducted over the last several years have suggested that the existing discharges of conventional described pollutants have no adverse impact upon water quality in the Puget Sound.
It is my understanding that to be eligible for a waiver of the secondary treatment requirements, the Administrator of EPA must make a determination that Seattle Metro meets the six stringent requirements outlined in the bill we are considering today. At a recent hearing in Seattle on June 6, and in many previously printed reports, the Metro people have put forth evidence that they should be able to satisfy these criteria.
My question to the Senator is, does the committee intend that the central basin of Puget Sound be included within the committee's definition of "marine waters"?
Mr. MUSKIE. The answer is "Yes." In fact, it was the specific instance of Seattle which prompted the committee to address the secondary treatment question. As the Senator realizes, the Administrator of EPA is responsible for defining "marine waters" in those hydrological and geological characteristics necessary to insure that the modified secondary treatment requirements would not jeopardize the goal of attaining and maintaining water quality which will provide for the protection of public water supplies and the protection of the propagation of fish, shellfish, and wildlife, and allow recreation, in and on the water. I think it is clear that the extensive research done by Seattle Metro and other west coast dischargers will assist the Administrator in defining those characteristics.
I would like to emphasize that while this amendment provides relief for the discharge of conventional pollutants, the provision is not intended to in any way relax the overall objective for publicly owned treatment works to achieve recycling of water and confined and contained disposal of pollutants. It is expected, therefore, that Seattle Metro and others qualifying for the provision will, as part of permit conditions, apply research and development resources to continue to develop systems which will achieve these objectives.
Mr. JACKSON. I wish to thank the Senator and indicate that his answers are consistent with my understanding of the committee report as well.
Mr. STONE. Mr. President, this year the committee bill provides for delegation of phase 2 and 3 permit authority under section 404 to those States with approved programs for control of discharges for dredged and fill material. As the Senator from Maine knows, my own State of Florida has been a leader in the protection of wetland areas and has established a permit program to control those discharges. Is this the kind of program the committee had in mind when they provided for this delegation?
Mr. MUSKIE. Yes; in fact the committee was impressed by the testimony of Jay Landers, secretary of the Florida Department of Environmental Regulation who requested us to authorize State delegation.
Mr. NUNN. Will the Senator from Maine yield for a few questions to clarify certain provisions of the pending measure?
Mr. MUSKIE. I am delighted to yield to the Senator from Georgia.
Mr. NUNN. I thank the distinguished Senator. It is my understanding that, under this amendment, a State may receive authority to regulate dredge or fill activities in phase II or III areas whether or not it has completed its section 208 planning and had its 208 programs approved. Is that correct?
Mr. MUSKIE. Yes, the Senator understands this correctly.
Mr. NUNN. Therefore, is it true that a State with such authority could issue a general permit for agricultural, silvicultural, mining and other non-point source activities described in section 208 before it has obtained approval of its section 208 program?
Mr. MUSKIE. Once again, the Senator is correct. The answer is yes.
Mr. NUNN. I believe that general permits for dredge and fill activities can help eliminate lengthy delay and administrative red tape. However, it is important that such general permits be drafted in a reasonable manner so as not to negate their usefulness. For example, the Corps' proposed general permit for mining in Georgia contains a requirement that even though an activity is generally permitted, a person wishing to conduct such permitted activity must still give the Corps notice 45 days in advance of conducting the activity. The Corps then would have an unlimited time to approve or disapprove the activity. Thus, the Corps in essence is requiring activities to be individually permitted even though it purports to generally permit the activities. Obviously, this procedure imposes burdensome and potentially lengthy delays which could severely disrupt normal mining activities.
For general permits to be meaningful, it seems to me that once a general permit is obtained, it should authorize activities generally without separate approval being required before undertaking each such permitted activity. Am I correct that the general permits contemplated here are intended to grant permission to conduct activities without such separate approval from the Corps or a State each time that activity is to be conducted, or without any more than reasonable notice?
Mr. MUSKIE. Yes; the Senator is correct.
Mr. NUNN. I thank the Senator.
Last month, the Corps issued nationwide permits with respect to certain dredge and fill activities. This amendment contemplated such permits, and I assume that your committee thought the activities now permitted in the Corps' nationwide permits are within the powersof the Corps by these amendments.
Mr. MUSKIE. The committee did not specifically endorse the Corps' nationwide permit regulations already issued. The content of such general nationwide permits would be a matter of agency interpretation of the language of this amendment. The bill does, however, grant authority for nationwide permits as contemplated in the recent Corps regulations.
Mr. NUNN. I thank the Senator from Maine for his clarification.
Mr. JACKSON. I have another question also related to the marine waters of Washington State, which I would like clarified. Washington has a number of pulp and paper mills which, while taking action to comply with the secondary treatment requirements of Public Law 92-500, are currently in court in an attempt to clarify certain BOD discharge differences between themselves and EPA with regard to secondary treatment. In the committee report there is language authorizing up to an 18 month extensionof the 1977 deadline where the administrator finds that the discharger acted in good faith in an attempt to meet the best practicable technology for industrial discharges.
My concern here is the words "good faith," because I do not believe that the committee intended that just because a party or parties are in litigation necessarily serves as prima facie evidence of bad faith. Is it not true that a source could be involved in seeking available administrative or judicial relief from the requirements of this act and still be found by the administrator to be acting in good faith?
Mr. MUSKIE. Certainly, but that is something on which the administrator must make the final determination before providing any extensions.
Mr. JACKSON. The reason I am pursuing this matter is Washington State's Department of Ecology has been working with all of the mills currently in the abovementioned court case and is now at the point of agreement with five of the six mills in question, and they will install secondary treatment facilities. So that the record will be clear I would request that the Washington Department of Ecology statement of March 1, 1977 on this matter be included in the RECORD at this point.
There being no objection, the statement was ordered to be printed in the RECORD, as follows:
WASHINGTON DEPARTMENT OF ECOLOGY
PUBLIC STATEMENT
Acting D.O.E. director Wesley A. Hunter expressed his disappointment today, March 7, on the decision by the E.P.A. to take legal action against six Puget Sound area pulp and paper mills.
Hunter said, "this is a highly technical issue complicated by legal procedures. The state has been working closely with the industries involved to bring about water quality improvement, and this action may, in fact, delay cleanup. Complicated environmental, technical, economic and legal actions are involved. Added Federal litigation can only confuse and delay.
A major problem is that E.P.A. has delayed almost 2 years after their own deadline in promulgating the national guideline. As a result, industry appeals of the guidelines have extended past the compliance dates in the state's permits.
The D.O.E. has been in litigation with all six of these mills for two years trying to achieve the secondary treatment requirements mandated by Congress. We are now at the point of agreement with five of the six mills in question, and they will install secondary treatment. EPA wants us to impose monetary penalties against these mills because they took appeals which were authorized by law.
The state has been involved with regulating waste discharges with the pulp and paper industry since 1945. In 1972, Congress passed Federal legislation authorizing the EPA to establish national guidelines covering waste discharged from industrial plants. The states were then required to issue waste discharge permits consistent with EPA guidelines.