STAFF PRINT TITLE IV PERMITS AND LICENSES COMMENTS "DISCHARGE PERMITS" "SEC, 402. (a) (1) That it shall not be lawful to discharge or cause, 23 suffer, or procure to be discharged, either from or out of any ship 24 barge, or other floating craft of any kind, or from the shore, wharf, 25 manufacturing establishment, or mill of any kind, any pollutants of 26 any kind or description whatever, or from any municipal sewage 27 collection system, or any waste treatment plant, into any navigable 28 waters of the United States, waters of the contiguous zone, or by 29 any person subject to the jurisdiction of the United States into the occans, from which the same shall flost or be washed into such water; and it shall not be lawful to discharge, or cause, suffer, or procure to be discharged pollutants of any kind in any place on the bank of any navigable waters, or on the bank of any tributary of any navigable 34 waters where the same shall be liable to be washed into such water or sea, either by crdi ary or high tides, or by storms or floods, or 36 otherwise, whereby water quality may be degraded or navigation 37 shall or may be impeded or obstructed Provided, That nothing herein 38 contained shell extend to, apply to, or prohibit the operations in connection with the improvement of such waters or construction of 40 public works, considered necessary and proper by the United States 41 officers supervising such improvement or public work except as other42 wise required by this Act. And Provided further, That the Administrator, whenever in the judgment of the Secretary of the Army an 44 chorage and navigation will not be injured thereby, may after public tion Sec. 402 should be eliminated in its entirety as these areciments, if they are enacted, should require the repeater of that portion of the Rivers and Harbors Act of 1899 now codified as 33 C.s.c. 407. Section 402 as set forth herein with two principal exceptions seems to be a verbatim repet. and re-enactment of that section of the Rivers and Harbers Act of 1899 described above. Section 402 does pick up mielial sewage treatment works and does specify the conditions under which a discharge perit can be issued by the Administrator. The conditions under which the discharge permit can be issued, however, now constitutes those with which a source must comply under Title III of this Act. If a source does comply with Title III then it is difficult to understand why it must also go through the necessary paper work to obtain a pert restating its compliance with the effluent limitations to be announced pursuant to Title III under Section 432 or under the River and Harbors Act or under both when the issuance of such a permit and its retention by the source become nothing more than paper work. This see a to be a classic situation of legislative enactment of a comprehensive program (Title III NË these amendments) which not only refuses to repeal an older and partially duplicative piece of legislation (the Rivers and Farhors Act of 1899) but even worse, modifies and re-enacts the older duplicative provisi (Section 402 of these amendments) modifying sufficiently the criteria for issuance of such permit, the method of legal enforcement, and the range of punishment pertaining to each violation so as to raise seri question as to by whom and for how much a violater will be prosecuted; by the Coast Guard, by the Administrator ander Section 402, or by the Administrator under Title III? The simple answer is that Section 402 and the Rivers and Harbors Act of 1899 should be repealed and all sources governed by Title III with violators to be prosecuted thereunder. STAFF PRINT has given notice of such action to the Administrator, except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of section 306, section 307, or operating without a permit or in violation of a permit under section 402, or an order issued by the Administrator pursuant to section 309. Notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation. "(c)(1) Any action respecting a violation by a discharge source of an effluent standard or limitation or an order respecting such standard or limitation may be brought only in the judicial district in which such source is located. "(2) In such action under this section, the Administrator, if not a party, may intervene as a matter of right. "(d) The court, in issuing any final order in any action brought pursuant to this section, shall as ard costs of litigation (including reasonable attorney and expert witness fees) to citizens or citizen groups in cases in which such citizens or citizen groups successfully maintain an action under subsection (a) of this section. The court may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Federal Rules of Civil Procedure. (e) Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief (including rehef against the Administrator or a State agency). ") For purposes of this section, the term 'effluent standard or limitation under this Act' means a schedule or timetable of compliance, or effluent limitation under section 303 or 304; standard of performshce under section 306; prohibition or effluent standard under section 307, certification under section 401; or a prohibition or condition of any perait under section 402 which is in effect under this Act (including a requirement applicable by reason of section 313) or under an applicable implementation plan. "(g) A Governor of a State may commence a civil aetion against be Administrator where there is alleged failure of the Adminstrator to enforce a violation of an effluent standard or limitation under this Act, occurring in another State causing an adverse effect on the health or welfare in his state or is causing a violation of water quality standards or implementation plans in his State. (b) Whenever a municipality is a party to a civil suit authorized under this section, the state of that municipality shall be joined as a party to the action and shall assume financial responsibility for any costs incurred as a result of any judgment against the municipality if Add the following: (C) If during the 45 days following notice of the violation the violation ceases and does not recur during a ninety day period beginning with the expiration of the 45-day period after notification. Reason: Non-recurrent difficulties resulting in violation should not be made the subject of protracted citizens' suits but should be handled by the Administrator or State authorities. Substitute for (d) . (d) The court, in issuing any final order in any action brought pursuant to this section, shall award costs of litigation to citizens or citizen groups in cases in which such citizens or citizen groups successfully maintain an action under subsection (a) of this section and to the defendant or defendants when such defendant or defendants successfully defend against such an action. The Court shall, if a temporary restraining order or preliminary injunction order is sought, require the filing of a bond or equivalent security in accordance with the Federal Rules of Civil Procedure. Should judgment be entered by the Court in favor of any citizens or citizen groups against the defendants, then the citizens or citizen groups shall recover no more than $150,000.00, excluding the costs of litigation, from the defendant or defendants. Any citizens or citizen groups who might have brought suit on their own behalf on the matters alleged in the complaint may join such suit as plaintiffs, and, in any case where notice was given as provided in subsection (a) of this section, a failure to join shall bar any subsequent suit under this section for discharges or violations up to the date of filing of the complaint or date of judgment, whichever is later, by such citizens or citizen groups as if they had joined in such suit. Reason: Although responsible citizen action based upon reliable data is to be encouraged, no facility which discharges should be subjected to harassing litigation based upon marginal or improperly collected data; such facilities should specifically not be expected to have to finance repetitious litigation of this type by being possibly required to pay the costs of such irresponsible repetitive litigation even though the facility successfully defended against such actions. The ceiling upon citizen recoveries is ample to appropriately reward such citizens if they are victorious but such ceiling is not applicable to actions brought by the Administrator or State authorities. Facility should not be required to defend against a multiplicity of actions involving the same alleged violation or against a series of litigations based upon alleged violations occurring close in time and which could have been combined into one action. 16 17 "(b) Any employee or a representative of employees who believes that he has been discharged or otherwise discriminated against by any 18 person in violation of paragraph (1) of this subsection may within 19 thirty days after such violation occurs, apply to the Secretary of Labor 20 for a review of such alleged discharge or discrimination. A copy of the 21 application shall be sent to such person who shall be the respondent. 22 Upon receipt of such application, the Secretary of Labor shall cause 23 such investigation to be made as he deems appropriate. Such investiga24 tion shall provide an opportunity for a public hearing at the request 25 of any party to enable the parties to present information relating to 26 such violation. The parties shall be given written notice of the time 27 and place of the hearing at least five days prior to the hearing. Any 28 such hearing shall be of record and shall be subject to section 554 of 29 title 5 of the United States Code. Upon receiving the report of such 30 investigation, the Secretary of Labor shall make findings of fact. If he 31 finds that such violation did occur, he shall issue a decision, incorporat32 ing an order therein and his findings, requiring the party committing 33 such violation to take such affirmative action to abate the violation as 34 the Secretary of Labor decins appropriate, including, but not limited 35 to, the rehiring or reinstatement of the employee or representative of 36 employees to his former position with compensation. If he finds that there was no such violation, he shall issue an order denying the 38 application. Such order issued by th: Secretary of Labor under this 39 subparagraph shall be subject to judicial review in the same manner as orders and decisions of the Administrator are subject to judicial review under this Act. Violations by any person of paragraph (1) of 42 this subsection shall be subject to the provisions of subsection (d) of 43 this section. 37 40 41 COMMENTS Add to Section 507. (a) the following: "provided, this subsection will not apply to any employee or any authorized representative of employees whose conduct has directly or indirectly resulted in the violation concerning which prom ceedings have been filed or instituted under thi Act or concerning which the employee or representat *** has given testimony or is about to testify in proceeding." Reason: If negligent employees or representatives of companies or corporations are not to be individad prosecuted under this Act, but rather their employer are to be prosecuted for the conduct of such perac then such persons should not be protected from discharge or other action by their employer. 6 STAFF PRINT 1 may be disclosed to other officers, employees, or authorized representa2 tives of the United States concerned with carrying out this Act, or 3 when relevant in any proceeding under this Act. Witnesses sum4 moned shall be paid the same fees and mileage that are paid witnesses 5 in the courts of the United States. In case of contumacy or refusal to obey a subpena served upon any person under this subparagraph, 7 the district court of the United States for any district in which such 8 person is found or resides or transacts business, upon application by 9 the United States and after notice to such person, shall have juris10 diction to issue an order requiring such person to appear and give 11 testimony before the Administrator, to appear and produce papers, 12 books, and documents before the Administrator, or both, and any 13 failure to obey such order of the court may be punished by such court as a contempt thereof. 14 15 "(b)(1) A petition for review of action of the Administrator in 16 promulgating any prohibition, effluent standard, or standard of per17 formance may be filed by any interested person only in the United 18 States Court of Appeals for the District of Columbia. A petition for 19 review of the Administrator's action in approving or promulgating 20 any State or interstate water quality standards or implementation 21 plans including any effluent limitation or schedules for compliance 22 therein, may be filed by any interested person only in the United States court of appeals for the appropriate circuit Any such petition shall be 24 within thirty days from the date of such promulgation or approval, 25 or after such date if such petition is based solely on grounds arising 26 after such thirtieth day. 23 30 "(c). In any judicial proceeding in which review is sought of a deter31 mnation under this Act required to be made on the record after notice 32 and opportunity for hearing, if any party applies to the court for leave 33 to adduce additional evidence, and shows to the satisfaction of the 34 court that such additional evidence is material and that there were 35 reasonable grounds for the failure to adduce such evidence in the pro36 cending before the Administrator, the court may order such additional 37 evidence (and evidence in rebuttal thereof) to be taken before the 38 Administrator, in such manner and upon such terms and conditions 39 as the court may deem proper. The Administrator may modify his 40 findings as to the facts, or make new findings, by reason of the addi41 tional evidence so taken and he shall file such modified or new findings, 42 and his recommendation, if any, for the modification or setting aside 43 of his original determination, with the return of such additional 44 evidence. COMMENTS Substitute for (b)(1) "(b)(1) A petition for review of action of the Administrator in promulgating any prohibition, effluent standard, or standard of performance may be filed by any interested person only in the United States Court of Appeals for the District of Columbia or in the United States Court of Appeals for the circuit in which such interested party resides. If the interested person is a corporation such petition may be filed in the United States Court of Appeals for the circuit in which it is incorporated or in which it is doing business. A petition for review of the Administrator's action in approving or promulgating any State or interstate water quality standards or implementation plans including any effluent limitation or schedules for compliance therein may be filed by an interested person only in the United States court of appeals for the appropriate circuit. Any such petition shall be filed within ninety days from the date of such promulgation or approval, or after such date if such petition is based solely on grounds arising after such ninetieth day." 59-068 O 71 pt. 4 10 HOUSTON LIGHTING & POWER COMPANY HOUSTON LIGHTING & POWER COMPANY, Re Proposed Amendments to Federal Water Pollution Control Act. U.S. Senate, Washington, D.C. DEAR LLOYD: We are greatly concerned about the July 2 Staff Print of proposed amendments to the Federal Water Pollution Control Act. We are of the opinion that a number of provisions in this proposed legislation would substantially threaten our plans to construct and operate additional generating units at Cedar Bayou. The purpose of this letter is not to discuss all of the objectionable features of the Staff Print. Instead, we enclose suggested amendments that would eliminate from the legislation those features most harmful to the electric power industry in general and to the Company in particular. The primary objection from the Company's standpoint is that opponents of new power plants could use the bill to delay or block construction and opera. tion. One means of eliminating this problem would be to amend the Staff Print to create an exemption to permit construction of power plants. Such an amendment might be in the form of a clause like the following: "The provisions of this Act or any other Federal or state legislation notwithstanding, no person, including the Administrator, shall invoke the provisions of the Federal Water Pollution Control Act or any other legislation relating to water quality to delay or prevent the construction or operation of a steam electric generating plant, where the construction and operation of such plant has been determined by the Federal Power Commission to be necessary to insure the adequacy and reliability of all or part of the nation's electric power supply; provided, however, that the provisions of the Federal Water Pollution Control Act and other legislation may be invoked to regulate the mode and manner of operation of such plant after it is constructed." While the critical problem created by legislation like that proposed in the Staff Print is the potential delay or blockage of power plant construction, several specific provisions of the Staff Print would pose continuing operating problems for the Company. The first of these problems is found in Section 306 of the Staff Print. This section would require the EPA Administrator to promulgate national uniform standards of performance for newly constructed sources of water pollution. The definitions of the Staff Print make it clear that a uniform temperature standard for discharges would be required by this section for the entire nation. Such a requirement fails to acknowledge the different effects of thermal discharges on different bodies of water around the nation. One method of solving this problem would be to eliminate "steam electric power plants" from the categories of stationary sources for which uniform standards must be set. However, this might not prevent the Administrator from expanding the categories at some future date. As an alternative an amendment in the following form might be made: "In recognition of the fact that local conditions are very important in deter mining the effect of thermal discharges and of the fact that heated water is not in and of itself a pollutant, no uniform temperature standards for discharges shall be set by the Administrator." An alternative to the amendment discussed above would be to provide a specific standard in the legislation. Provision could be made for adjusting that standard. One such standard is that proposed by the Federal Water Pollution Control Administration in its 1968 "Green Book." That standard, with an added provision for amendment, would read as follows: ..; provided, however, the establishment of standards governing the addition of heat of artificial origin to inland, estuarine or coastal waters shall be subject to the following guidelines: (a) it shall be lawful to elevate the monthly |