October 14, 1978
Page 37502
FEDERAL WATER POLLUTION CONTROL ACT AMENDMENTS
Mr. BAKER. Mr. President, I ask unanimous consent that the Committee on Environment and Public Works be discharged from further consideration of H.R. 12140, a bill to amend the Federal Water Pollution Control Act to provide additional authorizations for certain operating programs under the act, and that the Senate proceed to its immediate consideration. I make this request on behalf of the Senator from Vermont (Mr. STAFFORD).
The PRESIDING OFFICER. The bill will be stated by title.
The legislative clerk read as follows:
An act (H.R. 12140) to amend the Federal Water Pollution Control Act to provide additional authorizations for certain operating programs under the Act.
The PRESIDING OFFICER. Is there objection to the immediate consideration of the bill?
There being no objection, the Senate proceeded to the consideration of the bill.
UP AMENDMENT NO. 2121
Mr. BAKER. Mr. President, there is an unprinted amendment at the desk. I ask for its immediate consideration.
The PRESIDING OFFICER. The amendment will be stated.
The legislative clerk read as follows:
The Senator from Tennessee (Mr. BAKER), for himself and Mr. MUSKIE, proposes an unprinted amendment numbered 2121.
The amendment is as follows:
Strike all after the enacting clause and insert in lieu thereof the following:
"That (a) Clause (1) of section 104 (u) of the Federal Water Pollution Control Act (33 U.S.C. 1254) is amended to read as follows: "(1) not to exceed $100,000,000 per fiscal year for the fiscal year ending June 30, 1973; the fiscal year ending June 30, 1974, and the fiscal year ending June 30, 1975, and not to exceed $14,039,000 for the fiscal year ending September 30, 1980, for carrying out the provisions of this section, other than subsections (g) (1) and (2), (p), (r), and (t), except that such authorizations are not for any research, development, or demonstration activity pursuant to such provisions;"
(b) (1) Section 311(a) (2) of the Federal Water Pollution Control Act is amended by inserting before the semicolon at the end thereof the following: ", but excludes (A) discharges in compliance with a permit under section 402 of this Act, (B) discharges resulting from circumstances identified and reviewed and made a part of the public record with respect to a permit issued or modified under section 402 of this Act, and subject to a condition in such permit, and (C) continuous or anticipated intermittent discharges from a point source, identified in a permit or permit application under section 402 of this Act, which are caused by events occurring within the scope of relevant operating or treatment systems".
(2) Section 311 (a) of the Federal Water Pollution Control Act is amended by adding at the end thereof the following new paragraph:
"(17) 'Otherwise subject to the jurisdiction of the United States' means subject to the jurisdiction of the United States by virtue of United States citizenship, United States vessel documentation or numbering, or as provided for by international agreement to which the United States is a party.".
(3) Section 311(b) (2) (B) of such Act is amended to read as follows:
"(B) The Administrator shall within 18 months after the date of enactment of this paragraph, conduct a study and report to the Congress on methods, mechanisms, and procedures to create incentives to achieve a higher standard of care in all aspects of the management and movement of hazardous substances on the part of owners, operators, or persons in charge of onshore facilities, offshore facilities, or vessels. The Administrator shall include in such study (1) limits of liability, (2) liability for third party damages, (3) penalties and fees, (4) spill prevention plans, (5) current practices in the insurance and banking industries, and (6) whether the penalty enacted in subclause (bb) of clause (iii) of subparagraph (B) of subsection (b) (2) of section 311 of Public Law 92-500 should be enacted.".
(4) Section 311(b) (3) of such Act is amended by striking out "in harmful quantities" and inserting in lieu thereof "in such quantities as may be harmful".
(5) Section 311(b) (4) of such Act is amended to read as follows:
"(4) The President shall by regulation determine for purposes of this section those quantities of oil and any hazardous substances the discharge of which may be harmful to the public health or welfare of the United States, including but not limited to fish, shellfish, wildlife, and public and private property, shorelines, and beaches.".
(6) Section 311(b) (5) of the Federal Water Pollution Control Act is amended by inserting "at the time of the discharge" after the words "otherwise subject to the jurisdiction of the United States".
(7) Section 311(b) (6) of such Act is amended by inserting after "(6)" the letter "(A)" and by inserting "at the time of the discharge" after the words "otherwise subject to the jurisdiction of the United States", and by inserting four new subparagraphs as follows:
"(B) The Administrator, taking into account the gravity of the offense, and the standard of care manifested by the owner, operator, or person in charge, may commence a civil action against any such person subject to the penalty under subparagraph (A) of this paragraph to impose a penalty based on consideration of the size of the business of the owner or operator, the effect on the ability of the owner or operator to continue in business, the gravity of the violation, and the nature, extent, and degree of success of any efforts made by the owner, operator, or person in charge to minimize or mitigate the effects of such discharge. The amount of such penalty shall not exceed $50,000, except that where the United States can show that such discharge was the result of willful negligence or willful misconduct within the privity and knowledge of the owner, operator, or person in charge, such penalty shall not exceed $250,000. Each violation is a separate offense.
Any action under this subparagraph may be brought in the district court of the United States for the district in which the defendant is located or resides or is doing business, and such court shall have jurisdiction to assess such penalty. No action may be commenced under this clause where a penalty has been assessed under clause (A) of this paragraph.
"(C) In addition to establishing a penalty for the discharge of a hazardous substance, the Administrator may act to mitigate the damage to the public health or welfare caused by such discharge. The cost of such mitigation shall be deemed a cost incurred under subsection (c) of this section for the removal of such substance by the United States Government.
"(D) Any costs of removal incurred in connection with a discharge excluded by subsection (a) (2) (C) of this section shall be recoverable from the owner or operator of the source of the discharge in an action brought under section 309(b) of this Act.
"(E) Civil penalties shall not be assessed under both this section and section 309 for the same discharge.".
Mr. BAKER. Mr. President, this amendment represents compromise language involving section 311 of the Federal Water Pollution Control Act, and I ask for the immediate consideration of the amendment.
Mr. JAVITS. Mr. President, does this relate to commercial banks handling revenue funds?
Mr. BAKER. It does not. I yield to the chairman of the subcommittee to answer that.
Mr. MUSKIE. Mr. President, does the Senator from New York wish me to yield?
Mr. JAVITS. I take it that the measure I am concerned about, which relates to the marketing of revenue bonds, is not on this bill, it is another bill?
Mr. MUSKIE. Mr. President, the amendment before us revises the hazardous substances program under the Federal Water Pollution Control Act.
First, the proposal simplifies the determination of which discharge incidents must be reported to the Federal Government. The amendment makes it clear that the determination of harmful quantities does not require an assessment of actual harm in the variety of circumstances in which such substances might be discharged. Rather, the amendment makes the determination based on the Administrator's judgment of what quantity may be harmful as a result of its chemical properties, not the circumstances of its release.
Second, the amendment would establish two options for penalizing dischargers of hazardous substances. The first option, which already is in the statute, consists of an administratively assessed penalty of up to $5,000 for each violation. The second option would be a civil action in Federal district court for penalties not to exceed $50,000 per violation, unless the discharge was the result of willful negligence or misconduct, in which case the penalty maximum would be $250,000 per discharge. The amendment specifies the factors the court would assess in establishing the penalty.
Third, the amendment clarifies which section of the act governs discharges of oil and hazardous substances from point sources with NPDES permits. Chronic discharges from a point source permitted under section 402 which are associated with manufacturing and treatment technology are to be regulated under sections402 and 309. "Classic spill" situations will be subject to section 311, however, regardless of whether they occur at a facility with a 402 permit. The amendment also clarifies that the costs of removal of a discharge of a hazardous substance from a point source with a 402 permit are recoverable from the owner or operator of the source under section 309(b) of the act.
Mr. President, while I have indicated that I will not oppose the passage of this so-called "quick fix" amendment to the hazardous substances program in section 311 of the Clean Water Act, I am troubled by some of the implications of it. .
First, I am concerned that it has been the judicial process rather than the process of implementation of this program that has precipitated the need for making such a "fix". I still believe in the basic soundness of the hazardous substances program as written in the 1972 amendments to the Federal Water Pollution Control Act. The amendment before us incorporates the policy established in 1972 within the study required under the new subsection (b) (2) (B), and I expect that further analysis of this policy will reinforce my feeling that the penalty structure of the 1972 act would establish a standard of care on the handlers of hazardous substances.
It is this particular aspect — the standard of care issue — which is important. One of the main thrusts of the 1972 amendments was to create an incentive, which did not previously exist, upon those carriers of hazardous substances to exercise all due care in the transport and handling of those materials.
It was for this purpose that the penalty scheme, which would provide for penalties up to $5 million based on the nature of the substance spilled and spill itself, was put into place. We felt strongly that the environmental risk associated with moving such a substance should be reflected in their costs. If it proved that the environmental risks, and hence the financial risks, were too great, then perhaps that substance ought not be transported. On the other hand, that penalty scheme could also work to assure safer handling so as to reduce environmental risk and thereby reduce financial risk.
It is this aspect of the current law which will be revised by this amendment. While I understand that the judicial process; namely, a decision in a Louisiana district court, has enjoined the implementation of the program, I am not convinced that it is otherwise unworkable. The use and abuse of the judicial system to rewrite environmental law has become more prevalent.
Litigation in the Federal courts frequently delays implementation of important environmental programs which Congress contemplated in enacting major environmental legislation. EPA is currently defending over 70 challenges to its regulations in the Federal court system. A single court decision invalidating environmental regulations can effectively halt an important national program for years — while a time-consuming (and uncertain). appeal is pursued or while the Agency attempts to develop revised regulations to meet the objections perceived by the court — again with no certainty that another court will find those changes acceptable. This is precisely the current situation with respect to the section 311 hazardous substances regulations.
We have made the decision to fix the 311 situations now rather than wait for final judicial action.
Mr. President, Senator STAFFORD's remarks adequately describe the details of this amendment.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The amendment was agreed to.
The amendment was ordered to be engrossed and the bill to be read the third time.
The bill (H.R. 12140) was read the third time, and passed.
Mr. BAKER. Mr. President, I move to reconsider the vote by which the bill was passed.
Mr. ROBERT C. BYRD. I move to lay that motion on the table.
The motion to lay on the table was agreed to.