October 20, 1977
Page 34584
MARINE PROTECTION; RESEARCH, AND SANCTUARIES ACT AMENDMENTS
THE PRESIDING OFFICER. Under the previous order, the Senate will now proceed to the consideration of H.R. 4297, which the clerk will report.
The assistant legislative clerk read as follows :
A bill (H.R. 4297) to amend the Marine Protection, Research, and Sanctuaries Act of 1972 to authorize appropriations to carry out the provisions of such act for fiscal year 1978.
Mr. HOLLINGS. Mr. President, while the Senate Commerce Committee no longer has jurisdiction over title I of that act, the part which regulates the dumping of land-generated wastes at sea, the committee does assert jurisdiction over titles II and III (as does the Environment Committee). Title II deals with marine research in general, not just that related to ocean dumping. Title III establishes a general program of creating marine sanctuaries. We believe the provisions in H.R. 4297 dealing with titles II and III are acceptable.
I believe the Senate should pass H.R. 4297 and indefinitely postpone S. 1527 and S. 1425. The Senate Committee on Environment and Public Works, which has jurisdiction over title I of the act, concurs in this approach.
Mr. President, I am waiting for the arrival of my counterpart on the other side of the aisle to be here and make his statement.
This measure may be passed, I think, on a voice vote, unless someone asks for the yeas and nays. It is just the authorization act of the ocean dumping program, entitled the Marine Protection, Research, and Sanctuaries Act.
Mr. ROTH. Mr. President, the purpose of the amendment I had intended to propose is to remove any economic incentive which an ocean dumper might have to violate orders to stop ocean dumping. It does this by automatically imposing on the dumper a penalty equal to the economic benefit realized from failure to comply with an order to halt or reduce ocean dumping.
As the Senators from Maine and Vermont may recall, the Marine Protection, Research, and Sanctuaries Act was enacted in late 1972. It represented the adoption of a national policy that contamination of the great natural assets of the oceans would not be tolerated. Specifically, the law's purpose was to "prevent or strictly limit the dumping into ocean waters of any material which would adversely affect human health, welfare or amenities, or the marine environment, ecological systems, or economic potentialities." Pursuant to the authority conferred on it by this law, the Environmental Protection Agency has ordered the city of Philadelphia — which dumps 140 million pounds of sewage sludge off the Delaware and Maryland coast each year — to halt all ocean dumping by 1981, and cut it in half by 1979.
It is worth noting, I believe, that ocean dumping is considerably less expensive than the various land disposal alternatives. The cheapest land disposal method is land filling, which is twice as expensive as ocean dumping. The more environmentally acceptable alternatives such as pyrolosis are three to four times the cost of ocean dumping. Assuming that ocean dumping costs approximately $33 per dry ton, a city such as Philadelphia can save millions of dollars a year by ocean dumping sewage sludge.
The savings, of course, are illusory. The people upstream may be saving money, but that is because the people downstream are bearing the cost. In my view, money being saved by Philadelphia is coming out of the pockets of Delaware, Maryland, and New Jersey taxpayers. The ultimate results of ocean dumping are demonstrated in the New York Bight, where a sludge blanket several feet deep has accumulated.
Mr. MUSKIE. I am aware, and I think the other members of our committee also know, of the problems which are caused by ocean dumping. Indeed, I believe the public concern over ocean dumping is the principal reason that the bill as passed by the other Chamber includes a requirement that dumping cease by 1981. I think this is a serious problem and we most certainly would have addressed it this session, but for the urgent need to enact the water and air legislation, which has consumed all of our time.
Mr. STAFFORD. This is certainly a serious problem, and I think the Senator from Delaware is offering a possible solution which should be studied carefully. As he probably knows, noncompliance penalties are included in two other environmental pollution areas. We have already written such penalties into our clean air legislation and, assuming that there is no change in the proposed amendments to the Clean Water Act, the same will happen in that area. So there is certainly precedent for what the Senator is suggesting.
Mr. ROTH. Absolutely, I would like to say that this penalty is my own idea, but I must confess I appropriated it from a bill reported by your committee, I believe the air amendments.
It is precisely because this idea is not novel that I hope public hearings can be held early in the next session, perhaps January or February.
Mr. MUSKIE. I think that is possible. It is clear that we must address this problem next year so some concrete action can be taken, and our chances of actually enacting something will be improved by an early start. I could agree to hearings in January or February, if that is acceptable to the Senator from Vermont.
Mr. STAFFORD. I discussed this matter earlier today with the Senator from Delaware and certainly see no problems right now with holding hearings when we return next year. I would agree to that.
Mr. ROTH. I would appreciate that and, if it is agreed, will withdraw my amendment so that the Senate can move on to other pressing business. But I would ask unanimous consent that my amendment be printed in the RECORD at this point so it will be available to others for reference
There being no objection, the amendment was ordered to be printed in the RECORD, as follows:
At the end of the bill, add the following:
SEC. 2. Section 105 of the Marine Protection, Research, and Sanctuaries Act of 1972 is amended by adding at the end thereof the following:
"(i) (1) Any ocean dumping permit issued under section 102 of this Act, or any condition of which requires the permit holder to cease or reduce ocean dumping by a date certain, shall be amended to include a delayed compliance penalty, calculated and established pursuant to this section. Such penalty shall be imposed on any permit holder who does not cease or reduce ocean dumping by the date specified or in the amount required in said permit unless the reason or reasons for the permit holder's noncompliance were beyond the control of the permit holder.
"(2) As an enforceable interim step under a permit, any condition of which requires the permit holder to cease or reduce ocean dumping by a date certain, issued under section 102 of this Act, the permit holder shall furnish to the Administrator information containing a detailed description of the technology or systems proposed to achieve compliance and the estimated cost of compliance, including capital costs, debt service costs, the estimated schedule of expenditures to comply, and the estimated annual costs of operation and maintenance of any technology or systems required in order to maintain such compliance, together with such information as the Administrator may require on the economic value which a delay in compliance may have for the permit holder.
"(3) A notice of receipt of information pursuant to paragraph (2) shall be published in the newspapers in general circulation in each affected State, and such notice shall set forth where copies of the information are available for inspection and, for a reasonable charge, copying.
"(4) Within sixty days following the date of publication of the notice issued under paragraph (3) of this subsection there shall be published in the newspapers in general circulation in each affected State (and, as appropriate, the Federal Register) the proposed delayed compliance penalty applicable to the permit holder, with an announcement of an opportunity for a public hearing on such action.
"(5) Such proposed delayed compliance penalty, determined in accordance with guidelines published by the Administrator, shall be a monthly payment in an amount no less than the monthly equivalent of the capital costs of compliance and debt service over a normal amortization period, not to exceed ten years, operation and maintenance ccsts foregone as a result of noncompliance, and the economic value which a delay in compliance may have for the permit holder
"(6) The Administrator shall take final action establishing such delayed compliance penalty within sixty days after the date of publication of the proposed penalty under paragraph (4).
"(7) In the event a permit holder contests the delayed compliance penalty established under this subsection. the permit holder may within sixty days after publication seek review of such penalty in the appropriate United States district court.
"(8) Except as provided in paragraph (9), in no event shall any challenge or review taken under this subsection operate to stay or otherwise delay the obligation of a permit holder not in compliance to commence monthly payment of the delayed compliance penalty as determined by the Administrator, pending the outcome of any such review.
"(9) In any challenge of the imposition of the penalty based on an allegation that the failure to comply was due to reasons beyond the control of the permit holder, the obligation to commence monthly payment of the delayed compliance penalty may be stayed pending the outcome of such challenge: Provided, That, as a condition of such stay, the permit holder shall post a bond or other surety in an amount equal to the potential liability for such penalty during the period of the stay.
"(10) If a permit holder is successful in any challenge or review proceedings under this subsection, the court may award such relief as necessary, including cancellation of the bond, rebate of any payments, or adjustment of the amount of payments required by the order.
"(11) Willful failure to make any payment required by an order under this subsection of section 102 of this Act or to submit information required under this section shall, in addition to liability for such payments, subject the permit holder to a penalty under subsection (b).
"(12) Any person who violates any other provision of this subchapter, or of the regulations promulgated under this subchapter, or a permit issued under this subchapter, shall be liable to a civil penalty of not more than $50,000 for each violation to be assessed by the Administrator. No penalty shall be assessed until the person charged shall have been given notice and an opportunity for a hearing of such violation. In determining the amount of the penalty, the gravity of the violation, prior violations, and the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation shall be considered by said Administrator. For good cause shown, the Administrator may remit or mitigate such penalty. Upon failure of the offending party to pay the penalty, the Administrator may request the Attorney General to commence an action in the appropriate district court of the United States for such relief as may be appropriate.".
Mr. MOYNIHAN. Mr. President, there are coastal cities that have few alternatives to the deposition of sewage sludge in the ocean. New York City is one of them: It simply does not have presently available alternatives to ocean dumping; nor do I expect it to have an alternative by December 31, 1981, the deadline imposed by this act.
In cases such as this, a municipality should be afforded the time to find a viable alternative to ocean dumping. It is my understanding that section 4(b) would provide such an extension beyond the deadline. Section 4(b) defines the term "sewage sludge" with respect to the anticipated impact of its dumping on "human health, welfare, amenities, or the marine environment, ecological systems, or economic potentialities." If the Administrator finds that the ocean dumping of waste does not unreasonably affect any of these characteristics of the water, then he may grant an extension beyond the date in section 4(a).
Is my understanding correct?
Mr. MUSKIE. Yes, the Senator's interpretation of the act is correct. However, I must stress to the Senator from New York, that the test in the bill is a strict one. The sludge may not have a deleterious impact on the marine environment. The key word in section 4(b), open for the Administrator's interpretation, is "unreasonably."
Mr. MOYNIHAN. I understand. I thank the distinguished Senator from Maine.