ASSOCIATION OF METROPOLITAN SEWERAGE AGENCIES Mr. LEON G. BILLINGS, Washington, D.C., July 13, 1971. Professional Staff Member, Committee on Public Works, U.S. Senate, Washington, D.C. DEAR LEON: This is a report on the review by the AMSA Board of Directors of the Committee Print of the amendments to the Federal Water Pollution Control Act. In general, we believe that the staff has done a remarkable job in pulling together some very important changes which should greatly improve the effectiveness of the federal program. We are even willing to admit that some of the very useful provisions were not among those recommended by AMSA initially-but we do not want to ignore the fact that we note with approval that a number of the suggestions offered by AMSA found their way into the draft. As you know, one provision that is of special concern to AMSA's members is that dealing with reimbursement. Section 206 (page 12) is cast in a form that is an improvement over that offered in the AMSA bill introduced by Senator Magnuson. We believe, however, that it is worth pursuing the question of the cut-off date and the limits on community entitlement. We strongly urge that the cut-off be June 30, 1956 rather than 1966 and that the 50% figure (wherever it appears in the section) be reduced to 30%. Asuming the reliability of our estimates, this would reduce the amount of the total reimbursement cost from $12 billion to $2 billion. Moreover, it would redress the inequity that was suffered by those large cities which, in response to the urging of the Federal Government, initiated their water pollution control construction programs on a timely basis but, through no fault of theirs, did not receive the 30% federal contribution which was the concept underlying the federal program from 1956 Although after 1966, communities were eligible to receive a total federal share of 50%, this, too, was based on the concept of a basic 30% federal contribution with bonuses for other considerations adding up to the extra 20%. Thus, by lengthening the reimbursement period and reducing the entitlement, it will still have very broad support, will reduce the cost involved significantly, and will make it possible for those cities that were discriminated against to continue with their construction programs. As an alternative, the Subcommittee could keep the entitlement at 50% back through 1966 and reduce it to a 30% level for the period between 1956 and 1966. Another possibility-although much less desirable-would be to keep the level at 30% and select some arbitrary compromise date such as June 30, 1961. In any event, we do want to place as much stress on this as possible since it is of such critical importance to the members of AMSA. One further point on the section is the concept of subsection (b) which would require the reimbursement funds to be appropriated separately. Particularly if the Subcommittee takes the course suggested above and reduces the total cost to $2 billion, we believe it would make sense to keep the reimbursement authorization in the basic authorization section (sec. 207). On the question of authorization, we would direct your attention to the fact that now that the Committee Print calls for a 75% federal contribution, the total program for the 5-year period will no longer be a $30 billion Federal-State total program, but rather a $20 billion program, since the state and local share will be only one-third of the federal amount. To keep the total expenditure level at $30 billion would require the federal share to increase to $22 billion. Especially troublesome to AMSA is the statement of a national minimum water quality standard contained in subsection 302(d)(2) on page 19. The portion of the standard relating to recreational activities in and on the water is so all-encompassing as to be truly impossible of achievement, and in AMSA's view, undesirable and wasteful. To attempt to make some rivers or other bodies of water in this country suitable for swimming from a pollution point of view where other considerations would preclude such activity, could be a tremendous waste of resources. We believe a more realistic standard would be to substitute for everything after the phrase "fish and wildlife" in line 7 of page 19, the following: "and allow water recreational activities in or on the water where appropriate." We were surprised to see the concept of required secondary treatment in the licensing provisions appearing at the top of page 38. We strongly urge that no system, whether municipal or industrial, be required to have secondary treatment unless it can be demonstrated that it is the best and most economical way of achieving the water quality standard desired. We believe this can be accomplished by modifying section 402 (a)(1) by substituting the word "or" for "and" in line 3 of page 38, and by inserting after the world “violate" in that line the following: "(A) any approved water quality standards," and by relettering the remaining items appropriately. As noted in our letter of June 30, AMSA has prepared a substitute for subsection 204 (b) and attached to this letter is the suggested language, together with a brief memorandum setting forth the rationale. Next, we would repeat our suggestion of June 30 that the definition of "construction" in subsection 210(a) on page 14 be modified by inserting after the phrase "preliminary planning" on line 40 the following: "including drainage basin plans,". We recommend a further modification of the definition of "construction" to meet the San Diego problem discussed at our last meeting with you by adding a fourth item after the phrase "treatment works" on line 48 as follows: "and 4 payments in the nature of a contribution and capital of the local share to acquire the right to use treatment works constructed by others. We believe it would be desirable to amend subsection 104 (a) (5) to include the local governments in the monitoring program and recommend that the phrase "and their political subdivisions" be inserted after the word "States" in line 30 on page 2. We also believe it would be clearer if subsection 104(b) (3) were amended to include expressly such monitoring activities by adding the phrase "and (a) (5)" at the end of line 49 on page 2. We note that the revised section 106 (a) (2), on page 6, eliminates the condition for program grants that would require the Administrator's approval of State criteria for establishing priorities within such State. AMSA believes that this is a very important condition and recommends that it be reinstated. Although we believe we understand the purpose of subsection 209 (d) at line 29 on page 14, we think the language is somewhat misleading and believe this can be corrected by adding the word "separate" before the word "grant" in line 29, and by adding at the end of line 31, the following: "when such works are an integral part of the plan approved for the region". The 90-day limit provided for in subsection 301 (d) on page 16 is not likely to produce a very thoughtful set of criteria. Undoubtedly such a limit could be met, but you may wish to consider extending it to insure a better product. We believe it would be desirable to amend subsection 304 (d) (1) on page 22 by adding after the word "States", line 46, the following: "and their political subdivisions". Similarly, corresponding changes should be made in lines 1, 4, and 7 of page 23, and the word "by" in line 50, page 22, should be changed to "in". Additionally, AMSA believes that the 60% figure is too low and should at least be made level with the 75% construction grant formula. Please note, too, that there is a typographical error in that the subsection should be identified as (d). We suggest that the definition of "standard of performance" in subsection 306(a) (1) on page 24 be modified to make it clear that the technology referred to has been satisfactorily proved and that its use is economically warranted. We do not believe that you would want techniques to be used that were advocated, but were not adequately tested or that would increase the cost without commensurate benefit. This can be achieved by adding the phrase "and proved" after the word "available" in line 12 of page 24 and by inserting the following additional sentence in line 24, page 25, after the phrase "of such standards": "In promulgating such standards, the Administrator should consider the adequacy of the testing and the relative costs and benefits of new techniques and processes." We believe that the provision in subsection 307 (a) which would prohibit concentrations of the specified substances greater than that present in intake waters could create impossible situations. For example, one of our member systems acquires a trace of chromium which is not removable by conventional treatment facilities and which is far below any tolerance levels deemed unsafe. To insist on an absolute requirement where there is no known reason to do so could very quickly bring the entire program into disrepute. We suggest two possible approaches. First, would be to amend the subsection by striking that portion of the first sentence of subsection 307(a) beginning with the word "present" in line 4, page 26, and by inserting in its place the following: "prescribed by the Administrator is prohibited." A slightly different method would be to leave the first sentence of the subsection as it is, change the period to a comma and add the following: "provided, however, that the Administrator is authorized to grant waivers of this subsection upon a proper showing that its implementation would be unnecessary from a health and safety point of view." We presume that the purpose of subsecton 402 (e) is to enable the Federal licensing agency to prosecute violators, but such a requirement, at least as stated in the Committee Print, would make it impossible for the municipality itself to seek relief, if the Federal Government failed to do so. Additionally, we would suggest that the provision would have a positive tone to if the last clause beginning on line 22 of page 40, were changed to read: "and further provide that a municipality shall not allow any new discharge into such treatment works until such time as the conditions causing the violation have been corrected." Although AMSA strongly endorses the concept of effective enforcement, there is a problem inherent in the manner in which this subject is treated in the Committee Print. As we read section 309, a municipal system could be civilly or criminally liable for violations even though it would not have control over others, including industrial users, who might create situations that would constitute violations under section 309. Put in other terms, the present language would, in effect, make the municipal agencies absolute guarantors for all activities within their areas even if they have made every proper and legitimate effort to comply with the law and even if they are without authority or control to prevent offending actions by others. This seems to us to be an improper and undesirable ap proach. We think this situation could be ameliorated by adding the following sentence to subsection 309 (d), line 20, page 30: "Any municipality may plead as a defense to any action brought under this section the fact that it has taken every action within its authority to prevent or correct the situation complained of and that those parties which have created the alleged violation, either known or unknown to the municipality, are beyond the authority or physical capability of the municipality to control." Although this report is lengthy, we have undertaken to review the Committee Print and to indicate those areas where we believe amendments are essential As stated at the outset, we believe the proposal contained in the Committee Print is a vast improvement over the existing program and congratulate those who had a hand in its drafting. Sincerely, Enclosure. C. V. GIBBS, President. SUGGESTION FOR REWORDING SECTION 204 (b) "(b) Notwithstanding any other provision of this title, before approving grants for any treatment works under section 202, the Administrator shall, in accordance with regulations to be developed by him, determine that the applicant (1) has, or will impose prior to --, a system of taxes and/or charges to assure that users of the treatment works participate equitably in the construction, oper ation and maintenance costs of such works; (2) provides assurance of adequate financial capacity to pay the cost of any new treatment works constructed, expanded, or replaced after fiscal year 1976 where such works are required as a result of new industries, increased population, or expanded usage of facilities in the applicant's jurisdiction; (3) has legal, institutional, and managerial capability to assure adequate operation, maintenance, expansion and replacement of treatment works throughout the applicant's jurisdiction; and (4) will recover from industrial users of the system of which the project is a part, that portion of the estimated reasonable local cost of construction, operation and maintenance of interception, treatment and disposal facilities within the system which is allocable to the treatment and disposal of industrial wastes." RATIONALE FOR REWORDING SECTION 204 (b) (1) It should be a national goal to require that users of a sewerage system participate equitably in the costs of such system and a local option as to how chat participation is secured. Taxes and/or user charges will meet the national goal. If the imposition of user charges is to be a national goal, it should first be promoted through the availability of supplemental grants on news projects. (2) The staff proposal to require reserves to offset the cost of future treatment works imposes a severe penalty on existing users of the system and is contrary to the common practice of long term borrowing for public improvements with long life expectancies in order to spread the cost over the future users of such improvements. It should be adequate for an applicant to demonstrate that it has the capability to finance future construction requirements. (3) The financial capabilities for expansion of treatment works is covered in (2). (4) Covered in (2), therefore omitted. (5) If a national goal is the securing of the economies of joint industrialmunicipal treatment of wastes and the superior control of such industrial wastes afforded by modern municipal treatment plants, the charges required to be imposed by the applicant should recover only the local costs of such treatment, not the total cost. Further, the industrial share of such costs must be treated as a total sum to be recovered from industrial users as a class rather than force the applicant to demonstrate an equitable cost recovery from each such user of the system. In many metropolitan areas, the local administrative cost of determining an equitable cost recovery from each user would be prohibitively expensive. Also, the cost recovery determination should be made for the entire interception, treatment, and disposal system rather than for a project within that system because of the widely varying costs of treatment between separate works within a single system and because of the legal, administrative, and political problems associated with assessing varying costs within a single system. WATER POLLUTION CONTROL LEGISLATION ASSOCIATION OF METROPOLITAN SEWERAGE AGENCIES (AMSA) POSITION ON REIMBURSEMENT SECTION (SEC. 206) COMMITTEE PRINT AMSA supports the concept of reimbursement contained in Section 206 of the Committee Print on the water pollution control legislation but strongly urges that it be applicable from 1956, the beginning of the Federal construction grant program, as set forth in S. 1259, introduced by Senator Magnuson. Section 206 would fix the cutoff in 1966. In AMSA's testimony at the Subcommittee hearings last March, its membership of major city sewerage agencies (32 cities representing approximately 35 million people) recommended that the new legislation reimburse cities and other eligible agencies for the amounts by which the actual Federal contribution received since 1956 was less than 30% of the total construction cost, the Congressionally stated Federal policy incorporated into the 1956 Act first setting up the construction grant program. The reason the full 30% Federal share was not received by most cities was that from 1956 to 1961, there was a $250,000 ceiling on the Federal contribution to each project and from 1961 through 1965 the ceiling was $600,000 per project. Although the purpose of the limitation was to assure a widespread use of the limited funds, it obviously worked to the financial detriment of the largest cities. For example, a group of the nation's largest cities serving approximately 47% million people received Federal contributions totaling about $92.5 million for the period 1956 through 1969, whereas 30% of the investment made by those cities, totals almost $475 million. (See attached table.) Thus, instead of receiving the full 30%, the major cities listed received less than 6%. The points and arguments supporting the AMSA position may be summarized as follows: 1. Redressing inequities.-Those communities which responded to the Congressional exhortation to begin cleaning up the nation's waters, but through no fault of theirs did not receive the full Federal share, should not be discriminated against by a program which now provides greatly increased Federal contributions, thereby rewarding those communities which did not respond. 2. Credibility for future Federal programs.-Unless Congress demonstrates that communities which respond to its urgings will not be discriminated against, it will become increasingly difficult to secure the type of initiative and commitment required to achieve national objectives stated by the Congress. 3. The ability of major cities to secure new funds for water pollution control facilities.-One of the principal problems created for those cities which in the 1950's and 1960's taxed their citizens to initiate construction of water pollution control facilities was that they either exhausted their bonding capacity or placed it in a perilous condition. Many cities simply will be unable to finance new needed waste treatment facilities without some relief. Section 206, as written, would provide funds for some cities to finance the local share for new facilities—but to be truly fair and effective, the provision should include reimbursements for those cities which assumed significant financial burdens in the period before 1966, as well as after that date. With respect to the period following 1966, which is included in Section 206 of the Committee Print, consideration might be given to adjusting the entitlement of the individual states to conform to the degree of state action under the 1966 Act. Thus, those states which provided 30% matching funds, would be entitled to reimbursements to make their total amount of Federal contributions equal 40% of the construction cost. By the same token, those which provided at least 25% matching and adopted approved water quality standards, would be entitled to a 50% total of Federal funds. Although cost estimates for these options are not precise, the best that are available indicate that the cost of Section 206, in its present form, would be $12 billion. Extending the reimbursement feature back to 1956 at a 30% level would add something less than $500 million; and the extension back to 1956 plus the modification for the 1966-71 suggested above would require about $1 billion. SUMMARY OF MAJOR SEWERAGE AGENCIES-EXPENDITURES, GRANTS RECEIVED, AND INCENTIVE GRANT Negative value not appropriate. 1 These data as of September 1970 and April 1971. 4 Includes amounts shown in app. A to Mr. Kaiser's testimony, Mar. 17, 1971. Note: Prepared Apr. 15, 1971, using most of the information shown in a table prepared Sept. 12, 1969, by the mun pality of Metropolitan Seattle. |