March 1, 1977
Page 5751
COPING WITH CONSERVATION
Mr. MUSKIE. Mr. President, in 1972 the Congress established the National Commission on Water Quality. Well funded and well staffed, the Commission made a worthwhile study of the implications of the 1972 Clean Water Act.
But that study was ignored when the Commission's recommendations were written and forwarded to the Congress, reflecting neither the factual information generated by the study nor the thoughts of many of the Commission members and staff.
The 30 pages of recommendations were appended by 51 pages of individual views, with 13 of the 15 Commission members finding reasons to make comments.
It was a sobering experience and should serve as a lesson to those in the Congress who have tried to have outside groups to solve our difficult political problems.
Because the Commission wanted to substitute its judgment for that of Congress, because the Commission recommendations do not identify any other options to examine, because they were so controversial within the Commission, they are not very helpful.
The Senate Committee on Public Works has publicly stated its commitment to a thorough review of the 1972 Clean Water Act in this Congress. We intend to examine every important issue that has been raised, and we intend to use the staff report of the Commission as a factual baseline.
Mr. President, I ask unanimous consent that an article that appeared in the Journal of Soil and Water Conservation titled "The National Commission on Water Quality Report: How Will the Congress Cope?" be printed in full in the RECORD. Its author, Marvin Zeldin, has shown unusual perception and insight. He writes clearly about the Commission: its members, its staff, its activities, and its relationship to the Congress. He gives a detailed analysis of both the process and substance of the Commission's recommendations; I commend it to the attention of my colleagues.
There being no objection, the article was ordered to be printed in the RECORD, as follows:
THE NATIONAL COMMISSION ON WATER QUALITY REPORT:
HOW WILL CONGRESS COPE?
A major environmental battle awaits the 95th Congress when it convenes in January. The issue:
What to do with the recommendations of the National Commission on Water Quality to amend the Federal Water Pollution Control Act Amendments of 1972. For a preview of what's ahead, consider some of the major recommendations of the late and unlamented commission.
Created by the 1972 law, the commission was directed to study "all of the technological aspects of achieving, and all aspects of the total economic, social, and environmental effects of achieving or not achieving, the effluent limitations and goals set forth for 1983." The commission was supposed to recommend "midcourse corrections," a phrase that conjures up visions of a scientist altering the course of a space rocket to put it on a straight and true path to the moon or to Mars.
But if words still mean what they are supposed to mean, the commission's major recommendations would, if endorsed by Congress, abort the clean water mission launched by Congress in the 1972 act.
In that act, Congress decided that the most effective approach was to require all polluters to meet uniform national discharge standards based on technology in two phases. In the first phase, industries were required to meet discharge limits based on the use of "best practical control technology" and local governments were required to provide a minimum of secondary treatment for municipal sewage by July 1, 1977. In the second phase, industries were required to reduce discharges of pollutants still more by using "best available technology economically achievable" and local governments were required to use more advanced or "best practicable"sewage treatment by July 1, 1983. The 1972 law also set a national goal, not a requirement, of zero discharge of pollutants by 1985 and, wherever attainable, an interim goal of water safe enough for recreation and fish and wildlife propagation by July 1, 1983.
Long before the commission submitted its report, it was no secret that many local governments and some industrial polluters would not meet the 1977 deadline. It was also no secret that most dischargers would not meet the more stringent 1983 requirements. And no one in touch with reality imagined that the 1985 zero discharge goal would be achieved, except in the rarest of instances.
To adjust the 1972 law to the real world, some believe the wisest approach would be to amend the law to give the U.S. Environmental Protection Agency authority to extend the 1977 and 1985 deadlines on a case-by-case basis. Others prefer a return to the pre-1972 system of water pollution control, when discharges were generally determined plant-by-plant, based on water quality standards set for individual waterways by each state. Supporters of this approach contend that uniform national discharge standards and zero discharge of pollutants are unnecessary environmentally, too inflexible, and too costly.
This fundamental disagreement was reflected in the commission's work and its report. Behind this split lay the continuing battle between the five House members of the commission, led by Representative Jim Wright (DTexas), and the five Senate members, led by Senator Edmund Muskie (DMaine). The 1972 law had represented a victory for the Senate Public Works Committee. It was a tougher law than the House Public Works Committee leadership had wanted. The commission then became the instrument to build support for substantial change in the 1972 law. The House members' position, supported by Vice President Nelson Rockefeller, chairman of the commission, and other so-called "public"members, generally prevailed.
The result was a report that recommends these major changes in the law:
The 1977 Deadline. The commission recommended that Congress authorize EPA to postpone the 1977 deadline on a case-by-case basis — to September 30, 1980, at the latest — if a discharger proves reasonable progress toward compliance, or if a lack of federal construction grant funds has caused delay. But the commission also recommended case-by-case extensions if a polluter "can demonstrate other good and sufficient cause," an ambiguous phrase likely to guarantee a slowdown in pollution control and full employment for lawyers.
The commission also recommended that the 1977 requirements be waived, deferred, or modified if a polluter demonstrates that "adverse environmental impacts" will be "minimal or nonexistent," or that the cost will be "disproportionate" to projected environmental gains. Similarly, the commission recommended that the 1977 requirements be waived, deferred, or modified for entire categories of dischargers if the adverse environmental impacts will be minimal or nonexistent, or if the costs are disproportionate.
Both recommendations are open invitations to endless administrative debates and lawsuits to define "minimal or nonexistent" impacts and "disproportionate" costs. They would turn the clock back to the day when benefit-cost ratios and water quality standards were the prime considerations, public and ecological health be damned. And in recommending changes in the 1977 requirements, the commission went far beyond its mandate, for it was directed to study the impacts of the 1983 goal and requirements, not the 1977 requirements.
The 1983 Goal and Deadlines. The commission recommended that Congress keep the fishable swimmable goal in the law. But it also recommended that Congress postpone the 1983 deadline up to 10 years. In the interim, it recommended that treatment technology more advanced than the 1977 requirements be used only where necessary to achieve water quality standards. And it recommended that uniform application of the second round of national standards be put off until another commission studies the problem and reports to Congress.
To support the recommendation, the commission said: "Significant progress toward achieving the interim water goal [fishable-swimmable by 1983) will result from the uniform application of the 1977 requirements for point sources. Applying the 1983 point source requirements, and eliminating the discharge of pollutants, will have marginal impacts on water quality." Also, said the commission, "considerable evidence accumulated by the commission suggests that meeting the 1977 requirements may, in many cases, produce the desired water quality."
The problem: There is little or no evidence in the commission report, in the commission staff's report, or in the backup technical volume produced by the staff to support these sweeping contentions. On the contrary, the staff report and technical volume contain considerable evidence to refute the commission's claims. One example: The commission contracted for a series of studies to develop its assessment of water quality after the 1977 requirements are met. Said the technical volume in describing the studies: "A limited number of the modeling analyses fulfill the commission's requirements and can be employed as input to develop a national assessment; the majority of the studies, however, are marginal or inadequate for commission needs."
Toxic Pollutants. The 1972 law says that "it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited." While EPA's implementation of the toxic control provisions of the act has been abysmal, the commission was not asked by Congress to study the toxic issue or to suggest changes. Nevertheless the commission offered this recommendation: "Where possible, toxic pollutants in toxic concentrations shall be controlled in applicable effluent limitations and permits" no later than October 1, 1980.
With the words "where possible," the commission apparently would throw out the 1972 law's flat prohibition on the discharge of toxic pollutants in toxic amounts. Instead, the commission implies that a cost-benefit test should be used — that discharges of toxic amounts should be allowed if it is not technologically or economically possible to prevent them.
The 1985 Zero Discharge Goal. The commission recommended that Congress "redefine the goal of the elimination of discharge of pollutants by 1985 to stress conservation and reuse of resources." To justify that recommendation, the commission said: "The real intent" and "the real objective" of the 1975 goal "is to move the nation rapidly toward conservation and reuse of all resources."
Most rational people support conservation and reuse of resources. This is not at issue. What is at issue is this: There is not a scintilla of evidence in the 1972 law, in the commission report, or in the commission staff report to support the commission's interpretation of the real objective and intent of the 1975 zero discharge goal. Moreover, the gratuitous recommendations to redefine the
1985 goal out of existence exceeds the mandate Congress gave the commission.
In sum, the commission said its recommendations were intended to "maintain the impetus and direction of Public Law 92-500 to improve the quality of the nation's waters" and to "minimize adverse economic and social effects." On the contrary, the commission's major recommendations would emasculate the 1972 law.
As noted earlier, the commission recommended that uniform application of the second round of national discharge standards be put off until a second commission studies the problem and reports to Congress by 1985.The record of the first commission argues against that recommendation.
The first commission produced a lengthy staff report that, despite some weaknesses and omissions, at least contributes to public understanding of some of the problems of water pollution control. But after two and one-half years' work and the expenditure of $17 million of taxpayers' funds, Congress and the public deserved better than a report that could have been written in one week by someone out to scuttle the 1972 law.
Moreover, the workability of a 15-member commission, 10 of them members of Congress, is highly questionable. Aside from coming to the commission with preconceived ideas based on positions they may have taken on the very legislation they must then study, members of Congress simply do not have the time to devote to careful deliberation of a two-inch thick staff draft report and another two-inch thick technical volume compiled by the staff.
And Senator Howard M. Baker, Jr. (R-Tenn.), one of the commission members, raised another argument in his separate views on the report. He said, "Future commissions ought not to (sic) have congressional members." He explained that "the concept of the statutory commission would be better served by preserving to it the role of policy recommendation and to Congress the role of legislative design, separately."
Indeed, the history of the commission created by the 1972 act is itself noteworthy. The bill originally passed by the Senate did not call for the creation of a study commission. The bill originally passed by the House contained a provision requiring the National Academies of Sciences and Engineering to study the economic, social, environmental, and technological impacts of achieving or not achieving effluent limits based on "best available" technology. The House version would have delayed application of "best available" technology until the study report was in and until Congress passed a law so specifying after the report was in.
The conference committee compromised on a 15-member commission containing five public, five Senate, and five House members — instead of a study by the prestigious and reputable national academies. A poor compromise, in retrospect — MARVIN ZELDIN.
(NOTE: Mr. Zeldin is a freelance writer living in the Washington, D.C., area. His work on a variety of natural resource topics appears regularly in a number of national magazines.)