Page images
PDF
EPUB

discharges through outfall structures may be subject to permits under the Refuse Act of 1899 and certification of compliance with applicable water quality standards under Section 21(b) of the Federal Water Pollution Control Act. It is recommended that proposed Section 10(d) (2) be deleted or be amended to exclude the discharge of any effluent from any outfall structure.

The imposition of new permit requirements in addition to existing law would only serve to further complicate and delay the authorization of needed utility facilities and would provide no further assurance of the protection of water quality.

As noted above, S. 1014 contains no provision comparable to proposed § 10(d) (2) of S. 523. However, the matter of ocean dumping is covered by the proposed Marine Protection Act of 1971 (H.R. 4723) which is not applicable to outfall structures. We submit that this approach is preferable.

3. CERTIFICATION OF NEW FACILITIES

Analysis.-S. 523 contains proposed Section 10(e)(1) which would provide for the issuance of regulations to insure that any person constructing new facilities subject to water quality standards "shall install, maintain, and use the latest available pollution control techniques". The construction of such facilities for commercial purposes is prohibited unless certification of compliance is received from the Administrator and the State pollution control agency. S. 1014 contains no comparable provision.

Comments. We submit that this new provision has a number of undesirable features.

1. To the extent that such new facilities require other federal permits (as is the case with most, if not all, cooling water discharge facilities), it duplicates the certification requirements of Section 21(b) and the permit requirements of the Refuse Act of 1899.

2. No procedure is prescribed for obtaining these additional certifications. There is no time limit by which the Administrator or the State must act on an application.

3. No procedure is prescribed for appealing from the Administrator's denial of certification.

4. There is no requirement that the "latest available pollution control techniques" to be installed and used be among those that have been evaluated and recommended in accordance with § 10(b) (3).

5. It would appear that certification would be achieved at the cost of unnecessary and harmful delays in the completion of essential new generating units.

4. CLOSED-CYCLE TREATMENT SYSTEMS

Analysis.—Proposed Section 10(3) (2) of S. 523 would prohibit any discharge upon a finding "that closed-cycle production or treatment systems are available or can be made available" for any new facility.

The effect of this provision is to mandate the construction of new facilities in accordance with specifications prescribed by the Administrator. Insofar as electric generating plants in California are concerned, the implementation of the provision could lead to the prohibition of once-through ocean water cooling systems.

Comments. Because of the absolute and inflexible nature of this provision. it could have an unintended and undesirable adverse impact on the environment and natural resources of southern California. After years of extensive monitoring of coastal sites in California, cooling water discharges have not been shown to have any significant adverse effect on the marine ecology. Most, if not all, of the new generating plants in California will have to be built on ocean sites utilizing salt water for cooling purposes. Fresh water is a precious resource, particularly in the southwest, and is simply not available in the large quantities needed for use in closed-cycle cooling systems. Salt water cooling towers and air cooling systems may eventually achieve technical feasibility, but the construction and use of such systems are known to pose other substantial problems of air quality, require large land areas and are generally unacceptable from an aesthetic standpoint.

The selection of cooling systems for electric generating plants must be based on a sound and balanced consideration of all environmental effects, the value and availability of water, air and land resources and the need for electric energy to achieve other desirable social and environmental goals. We seriously question the practicality and wisdom of proposed § 10 (e) (2).

5. FEDERAL ENFORCEMENT PROCEDURES

Analysis. Both bills provide for the issuance of compliance orders by the Administrator or for the initiation of civil actions by him and provide for civil penalties in the event of violation of such orders or of water quality standards. S. 523 contains proposed Section 11(b) which provides that such orders are effective after "an opportunity to confer with the Administrator". Proposed Section 11(b) contains no provision for hearing or for a direct appeal. S. 1014 contains proposed Section 10(f) which provides for notice and a 30-day waiting period prior to the issuance of an order and also provides an opportunity for hearing and judicial review of such orders. The provisions for civil penalties in each bill are essentially comparable. S. 523 provides in proposed Section 11(d) (1) that negligent violations are subject to "a civil penalty of $10,000 per day of violation" and knowing violations are subject to "a fine of not more than $25,000 per day of violation". S. 1014 contains proposed Section 10(f) (5) which provides for "a civil penalty in an amount, not to exceed $25,000 per day of violation, to be determined by the Administrator and subject to compromise by him...". Both bills delete Section 10(h) of the existing Act regarding judicial enforcement.

Comments. We submit that the procedures for the issuance of compliance orders under S. 523 represent an unconstitutional violation of due process. The opportunity for consultation cannot properly be substituted for adequate notice, opportunity for hearing and an appeal based on a record. S. 1014 appears to contain procedural safeguards which meet minimum requirements of fairness. The penalty provisions of both bills are extremely harsh and those of S. 523 are less flexible than those of S. 1014, particularly with respect to the first occasion of a negligent violation for which it appears that no discretion to fix the penalty has been retained. Both bills would delete § 10(h) of the existing Act which permits the Federal court in acting on suits to enforce water quality standards, to give due consideration to the practicability and to the technological and economic feasibility of complying with such standards, and to enter such judgment or orders as the public interest and equities of the case may require. This provisions permits the court to weight and reconcile the public needs for protecting the environment from water pollution and for obtaining adequate, reliable economic electric energy.

6. INDIVIDUAL ENFORCEMENT PROCEDURES

Analysis.-S. 523 contains proposed Section 11(i) which would permit any person to bring a civil action in the United States District Court against any person, including a government instrumentality or agency, for declaratory and equitable relief or any other appropriate order to abate a violation of "any water quality standard, effluent requirement, schedule or timetable of compliance, or prohibition of discharge", or an order of the Administrator or of a State. S. 1014 also provides for civil actions brought by individuals but requires notice and a waiting period and the absence of Federal or State enforcement action. Comments. We believe that the enactment of either of these provisions would result in a multiplicity of abatement actions brought by private individuals and in harassment of defendants which would be contrary to the public interest. The parties involved would incur enormous costs as would the public in connection with the administrative costs of the district courts involved. We do not think that the result would be a gain in effective enforcement of water pollution regulations since adequate enforcement can be carried out by the regulatory agencies involved utilizing the remedies provided by existing Federal and State law. It must be recognized that there are individuals and groups who have the sole objective of preventing the construction of any new electric generating facilities. These persons and groups have and will continue to avail themselves of every opportunity to force delays by means of litigation or otherwise in order to frustrate plans to construct essential new generating capacity. To provide such persons or groups with a tool which can be so easily abused is to invite disaster from the shortage of essential electric service.

7. PROHIBITION OF CERTAIN CONTRACTS

Analysis.-S. 523 contains proposed Section 10(1) which would prohibit any Federal agency from entering into any contract with any person convicted of any offense under Section 10 (d) for the procurement of goods or services from the

facility at which the violation occurred. These provisions are to be implemented by procedures established by the Administrator and by Executive Order.

Comments. We seriously question the practicality or wisdom of this require ment. For an electric utility serving a Federal agency a finding of the absence of any conviction or a certification of the correction of the conditions giving rise to the conviction would have to be made for every generating plant on the utility's interconnected system. If any uncorrected conditions were found, the Federal agency could not continue to purchase electricity from the utility. Unlike most items procured by the government, there would be no alternative source of elec tricity in almost all instances. A ridiculous situation would thus develop, be cause it is inconceivable that any Federal department or agency could function without electricity. We submit that satisfactory achievement of water pollution control can better be achieved by methods of direct enforcement of pollution control laws, not by indirect or collateral methods such as this.

GENERAL CONCLUSIONS

1. An adequate and reliable supply of electric energy is essential to the solu tion of a wide range of environmental problems and legislation must be designed to reduce licensing and construction delays from proliferating Federal, State and local regulation.

2. The enforcement of water quality control regulations by State agencies in the manner contemplated by the Federal Water Pollution Control Act should be supported. The California Water Resources Control Board and the Regional Boards have been extremely diligent and effective in enforcing strict local regula tions. A new Federal or individual enforcement mechanism would add nothing to the effectiveness of this local enforcement.

3. The provision for individual legal actions would permit court intervention at each and every level of the administrative process and would frustrate, delay and render ineffective the administrative agencies who have the expertise and the mandate to carry out and implement environmental policy.

4. An unconditional and unqualified policy concerning the maintenance of high quality waters and a policy mandating the use of closed-cycle treatment systems based solely on availability are overly simplistic and fail to permit consideration of the total impact of these policies on the environment and on other valuable national resources.

5. The imposition of new permit requirements or new certifications of com pliance in addition to existing regulations would serve only to make it more difficult to secure timely decisions for the authorization of needed utility facilities and would provide no further assurance of the protection of water quality.

6. Certifications of compliance secured under Section 21(b) provide adequate assurance of the achievement of water quality objectives. Existing procedures would be improved and unnecessary delays avoided if Section 21(b) were clarified to assure that applications for Federal permits or licenses can be filed and processed during the period that such certification is being secured.

Thank you for the opportunity to present this statement.

TREASURY DEPARTMENT

Hon. JENNINGS RANDOLPH,

THE GENERAL COUNSEL OF THE TREASURY,
Washington, D.C., March 24, 1971.

Chairman, Committee on Public Works,
U.S. Senate, Washington, D.C.

DEAR MR. CHAIRMAN: Reference is made to your request for the views of this Department on S. 523, "To amend the Federal Water Pollution Control Act, as amended".

The bill would amend the Federal Water Pollution Control Act, as amended, to authorize the Administrator, Federal Water Quality Administration, to make grants to State and interstate agencies having approved plans for the enhancement of water quality through the prevention, control, and abatement of water pollution, to assist such States and interstate agencies to develop plans to implement water quality standards, train personnel, and assist political subdivisions of a State in carrying out water pollution control programs. The sum of $20,000,000 would be authorized to be appropriated annually for the fiscal years ending June 30, 1972 through June 30, 1976 for this purpose. The Administrator, Federal Water Quality Administration would also be authorized, during this same period, to make grants to States, municipalities, or intermunicipal or interstate agencies for the construction of waste treatment works which would be built in accordance with the approved State or interstate plan. The sum of $2.5 billion per year would be authorized to be appropriated for this purpose. In addition, the Administrator, Federal Water Quality Administration would be directed to develop criteria of water quality and would be given authority to enforce water quality standards.

On February 8, 1971, the President transmitted his 1971 Environmental Program to the Congress, including in it legislative proposals for water pollution control. These were subsequently introduced as S. 1012, S. 1013, S. 1014, and S. 1015.

In view of the foregoing, the Department would recommend favorable consideration of the Administration's proposals in lieu of action on S. 523. The Department has been advised by the Office of Management and Budget that there is no objection from the standpoint of the Administration's program to the submission of this report to your Committee.

Sincerely yours,

SAMUEL R. PIERCE,

General Counsel.

WATER AND WASTEWATER EQUIPMENT MANUFACTURERS

ASSOCIATION, INC.

By HARRY S. PRICE, Jr., President

SUMMARY OF STATEMENT

The Water and Wastewater Equipment Manufacturers Association is in general accord with the provisions of the proposed National Water Quality Standards Act of 1971 and Administration proposals.

The Association believes that delays in construction of water treatment facilities do not result from any lack of technical know-how, equipmnt or construction capabilities.

The delays are the result of lack of sufficient funds at Federal, state and local levels.

As stimuli to help channel more funds into water ecology projects, the Association proposes that the Subcommittee consider two additions to the proposed legislation.

1. Create an FHA-type Federal loan guaranty system to help make lower cost credit available at the State, and local government levels.

2. Stimulate the installation of industrial pollution control facilities by making the cost of such facilities fully tax deductible in the year of expenditure, for a limited number of years.

I am Harry S. Price, Jr., President of Price Brothers Company of Dayton. Ohio, a manufacturer of concrete pipe and fittings used extensively in the water supply and wastewater industries. I am President of the Water and Wastewater Equipment Manufacturers Association, Inc., a non-profit organization. I have been in the water supply and treatment business for 34 years.

This Association was organized in 1908 and long has had very close and harmonious relations with The Water Pollution Control Federal and the American Water Works Association, the two technical societies in the field. The Association represents some 300 member companies all engaged in the manufacture of equipment or supplies used in the water and waste-water equipment and supplies manufactured in the United States.

We are specially pleased to have an opportunity to present a statement to this Committee for not only is this proposed Act of vital interest to our members and their employees, but we also believe we are well qualified in the water and wastewater fields.

A great deal of progress in improving technology and equipment has been made in recent years. This progress has come primarily through the cooperative efforts of the municipal and private water utility engineers, the consulting engineers who specialize in this field and the manufacturers of equipment and supplies. While constant improvements in the industry's technology will continue to be made, I want to emphasize as a professional in the field, that the technology available today can handle existing water pollution problems. As far as productive capacity of our industry is concerned, both the consulting engineers and the manufacturers consider themselves in the midst of a mini-depression, with a high level of unused capacity. This has come about largely due to expansion of production capacity in recent years in anticipation of an increase in demand which has not materialized as rapidly as the industry had anticipated.

I might comment that there recently has been voiced the complaint, by people not knowledgeable in the industry, that it takes at least six months to get delivery on water treatment equipment. Of course it does, and it should. for this is highly technical equipment for the most part custom designed and built to fit the specific needs of a particular situation. But even if the equipment could be delivered sooner, the project could not use it that quickly because the building and facilities to house the equipment would not be ready. It is interesting to note that in the average treatment plant, equipment represents only 10 to 20 percent of the total cost, the bulk of which is in the construction field.

« PreviousContinue »