cluding arsenic and selenium. The domestic mining industry would be hard-hit by such the prohibition in Section 307. C. Many of the metals listed in Lines 7-15 are relatively pervasive and can be detected in infinitesimal quantities. It seems unlikely that any major municipal treatment facility, including the District's Blue Plains plant, when upgraded, could comply with Section 307 as drafted. D. In any event, the list should be deleted. Inclusion in the bill amounts to a finding of guilty before the trial. The Administrator, in Section 307 (c), with minor revisions, should have the power to set effluent standards for the discharge of some materials in quantities which are likely to be toxic. 14. Page 32, Line 35. The phrase "when discharge in any quantity", is ambiguous. Does it mean that a substance will be designated as hazardous only when discharged in hazardous quantity or does it mean that, if hazardous in any quantity, the substance will be considered hazardous in all quantities? In any event, this provision should be made consistent with the provision of (b) (4), as renumbered, regarding determination, by the President's designee, of "harmful quantities". 15. Page 32, Beginning at Line 44. This whole provision seems improperly placed, and the provision for liability for "all loss or damage", subject only to subsection (f) defenses, seems objectionable in that it seems to extend to certain hazardous substances (only substances not removable) a degree of liability higher than that for oil and other substances. 16. Page 33, Lines 4-6. It is not clear why the U.S. should be entitled to "liquidated" damages as a result of a discharge, as opposed to recovery of its costs for removal of oil or removable substances nor do we know how high it is proposed to set the amount "per barrel". Incidentally, the references to "barrel" and its definition at (a) (13), are probably incorrect or inopposite when applied to materials other than oil. 17. Page 33, Lines 11 and 12. It is not clear why the exception for oil in subsection (b) (4), as renumbered, is not extended to hazardous substances. Other exceptions, required for hazardous substances, but not for oil, may also be desirable. 18. Page 33, Lines 15 to 17. There is apparently a typographical error. These references cannot be identified. 19. Page 34, Lines 1 and 2. Consideration should be given to an express exception where the substance is deemed or declared non-removable. 20. Page 35, Lines 1 and 2. The bill should provide for preemption of the states, at least in connection with vessels. 21. Page 35, Line 3. “Inserting” should probably be “deleting", since this provision is executed. 22. Page 35, Lines 5-13. With penalties as high as $10,000 per violation, there should be clear provision for the time of establishing and effecting regulations for financial responsibility with regard to "hazardous substance" vessels, whenever that term becomes defined. Page 23. Page 35, Line 24. The reasons for limiting this to U.S. ports is not clear. 24. Page 35, Lines 30 and 31. Section 18 would delete all of Section 12 of FWPCA. This seems rather odd, since Section 12 has various provisions other than those already included at 2(A) (beginning at Page 32, Line 32) of the print. Among such other provisions are procedural protections which will prove to be critical in the regulatory process of identifying hazardous substances and related matters. Of particular interest in this connection is Senate Report No. 91-351, 91st Congress, August, 1969, Page 70 and 71. 25. Page 35, Line 34. The reference to "312" is in conflict with Page 32, Line 18 Title IV 26. Page 37, Line 44 and Line 1 on Page. 38. Delete the words "after public hearings". This clause apparently requires public hearings for every permit issued. This would be highly burdensome on the Administrator and not required by the public interest. Some provisions could, of course, be made for public hearings in contested cases. 27. Page 38. Lines 7 through 9 should be deleted, in accord with an earlier recommendation. 28. Page 38. Lines 34 through 37 should be deleted. This admonition to the Administrator could keep him in court forever because there is not likely in our lifetime to be "sufficient information" to prove the essentially negative injunctions in Paragraph A. 29. Page 38, Line 44. The power conferred on the Administrator to modify a permit "at any time" should be clarified, or at least confined by procedural requirements or a legislated specification of the terms under which it can be modified. 30. Page 39, Lines 6 and 7. Is the person in charge of a vessel or onshore facility who notifies the Government of a discharge of oil or hazardous substance. under Section 11 of the Federal Water Pollution Control Act, entitled to half his own fine? Title V 31. Page 42, Lines 14 and 15. It is not clear why "oil" as defined in Section 311 is excluded here but "hazardous substances" also defined in that section, are not. 32. Page 42, Lines 39 to 43. The words "by States" should be deleted, so the term effluent limitation could also be employed in Sections 307 (Page 26, Lines 34 and 35) instead of "effluent standard" in the interests of consistency and clarity. 33. Page 43. Lines 5 through 34 should be deleted. It is not clear why these types of pollutants, or nutrients, need to be defined in this text. Furthermore, it appears that some elements in the list of essential nutrients (like manganese) may also fall within the definition of toxic pollutant. The Administrator should, for the purposes of Section 307, be given the authority, by regulation, to defize toxic pollutants. Biological monitoring, also, should be defined by regulation because the definition here is so comprehensive as to be unworkable in terms of its earlier use in the bill. 34. Pages 44 and 45. The provisions for citizen suits are significantly different from those contained in the Clean Air Amendment of 1970 and different, toc from the provisions approved by the Committee when it reported the Clean Air bill in 1970. The reason for these changes is not apparent. PART II 1. In connection with the Title IV changing the Refuse Act of 1899, the Committee should recommend repeal of two other laws which conflict directly with Title IV. They are the Act of June 23, 1910 (33 U.S.C. 421) (relating to Lake Michigan), and the Act of June 29, 1888 (33 U.S.C. 441-451b) (relating to the harbors of New York, Baltimore, and Hampton Roads). The Refuse Act itself should also be repealed. 2. On Page 35, Lines 41-47 is a provision which grants any new or existing vessel a five year period of immunity from compliance with any new standards or regulations. Such a provision could well and usefully be applied generally to the construction of water treatment facilities. Municipalities and industrial concerns alike presently face the prospect that the water treatment facility they design and build today may be ruled out of compliance tomorrow on the basis of new standards, new regulations, or new technology. One clear result is delay. Much, today, can be gained by waiting until the last minute. The premium for delay would be eliminated by a five year grace period, and such a period would permit industry and city to amortize at least a part of their investment before being forced into new generation improvements. The result of such a provision would be more and better water treatment, not less. 3. The need for a technical review mechanism in environmental statutes. The Clean Air Act of 1970 and the proposed Water Pollution Control Amendments both require the Administrator of EPA to make a large number of complex and highly technical decisions and judgments: The availability of necessary technology. The toxicity or hazards of a vast array of elements and compounds. In making these decisions, the Administrator may have the assistance provided by public hearings, but he still acts as the advocate, judge and jury. Appeal. thereafter, is to the courts (except for the independent review of the National Academy of Sciences with respect to certain automotive standards in Title II of the Clean Air Amendments of 1970). The Courts are not equipped to make, or even effectively review, the technical and scientific judgments of the Administrator. This puts an intolerable and unwise burden on the Administrator. An independent source of technical and scientific review is needed to serve as an appeal body with respect to decisions of this type. Such independent review bodies are a familiar feature in many Federal statutes. The new Occupational Health and Safety Law, for instance, provides for a separate, expert review board. The Federal Insecticide, Fungicide, and Rodenticide Act makes provisions for a scientific and technical review by an NAS panel. The transportation safety laws provide for independent review by the National Transportation Safety Board. Such a review mechanism would contribute greatly to the effectiveness of the pollution control laws and increase their acceptance to the public and to the affected interests. There is no obvious, "best," means of providing this review. The National Academy of Sciences, apparently is not anxious for such a role. But there are a number of possbile approaches that may be considered, including: a. A separate, Presidentially-appointed review body (like the National Transportation Safety Board, or the Occupational Safety Review Commission). b. Use of the National Academy of Sciences. c. A variety of ad hoc arrangements, possibly drawing on technical and scientific talent in academic circles, in government (but not EPA employees), or industry (but not those affected by the issue). d. Creation of National Environmental Laboratories, along the lines suggested by S. 1113. Such laboratories could clearly serve as a much needed independent source or referee with respect to the technical and scientific data on which the Administrator must base many of his decisions. WATER POLLUTION CONTROL FEDERATION Hon. EDMUND MUSKIE, WATER POLLUTION CONTROL FEDERATION, Chairman, Subcommittee on Air and Water Pollution, Committee on Public Works, U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: The Federation appreciates very much the opportunity to review and submit comments on the working paper prepared by the Public Works Committee staff "Proposed Amendments to the Federal Water Pollution Control Act." The comprehensiveness of the proposal is impressive. It contains changes which clarify the intent of the 1965 Act as amended as well as simplify and coordinate the Act's content to facilitate implementation. However, the proposal, in our view, essentially would change the fundamental national policy for the prevention, control and abatement of water pollution, i.e. that it is the policy of Congress "to recognize, preserve and protect the primary responsibilities and rights of the states in preventing and controlling water pollution." While the staff print proposes to retain the statement attesting to his policy under Title I Section 101 (b) of the proposal there are key sections of the proposal wherein the status of the state agency is reduced to that of a "cooperating" agency. For example, it is proposed that comprehensive programs (Section 102) for water pollution control be prepared by the Administrator in cooperation with the states for eliminating or reducing the pollution of interstate and intrastate waters and ground waters. We interpret this to mean all the waters of the Nation. Section 209g Title II concerning Regional Water Treatment Management essentially reduces the state agency to the status of a branch or field office of EPA. As we interpret this section the Administrator decides what regionalization configurations in any state or combination of states is desirable and the Governor is given a period of time to agree. If he does, certain benefits accrue, such as being eligible for grants. If he does not agree "the troops" will be called in to design, construct, operate and maintain the plant. Among the items not clear is the time table and just how the funds are provided, what agency administers local sewer ordinances, what happens to a municipal discharge that is "prohibited" but continues to flow, how it is determined which municipalities within the basin must agree or may not agree to be a part of the district and as an alternative provide a community plant. The Federation submits that the punitive concept of Section 102 be reevaluated. Section 301 (a) Water Quality Information (Title III) asserts "each state shall have the primary responsibility for assuring water quality within its geographic area and Section 301 (b) assures public participation and state participetion in development and revision and enforcement of water quality standards. The Administrator is given 90 days after the effective date of the subsection te develop and publish after consultation with Federal and State agencies and other interested persons' criteria of water quality for the purpose of adopting or revising water quality standards and publishing same in the Federal Register. The 1963 edition of "Water Quality Criteria” prepared with the assistance of the Federal program and the State of California is a public document with more than 500 pages. Why is it necessary to publish this or its equivalent in the Federal Register? It is further proposed to publish in the Federal Register information on pollution control techniques, processes, procedures, and operating methods. including technical data. Since notices and rulemakings primarily make up the Register content we wonder about the motivation. Is this considered necessary to make information available to the public? The Federation in cooperation with the American Society of Civil Engineers publishes manuals of practice on sewer design and construction, and sewage treatment design. These manuals are and have been available to the public at minimal cost. We strongly question the need for the proposed action and submit that general enabling language mandating the Administrator to assure adequate information availability to all concerned is the appropriate course. Section 303 (a) (1) requires each state to submit to the Administrator within a "to be specified" time implementation plans for all waters within its boundaries. Said implementation plan must include programs to attain prescribed minimum National standards, self-monitoring systems, etc., as provided for in Sections 306, 307 and 308 as well as meet general requirements of no degradation and "control over the disposition of residual waste" (degradation needs to be defined; our suggestion is no impairment of stream use or violation of prescribed water quality standards.) Taken by itself, Section 303 seems reasonable; when the requirements of Sections 306, 307 and 308 are studied, serious questions arise. Section 306 proposes new National uniform standards of performance for new sources. This is geared toward a standard permitting no discharge of pollutants, and applies to 26 and more major industries. Thus an industry must no longer consider the potential natural treatment capability of a stream even if such is within the applicable stream standards in effect. This is discriminatory and if considered justified then so may other arbitrarily imposed restrictions to preclude relocation because of better transportation availability, more economical labor market, climate, etc. Here again the authority of the state agency is summarily preempted albeit opportunity is given the states to agree to the Federal requirement. In any event the detailed listing of specific industries, specific "pollutants" as in Section 307 in Legislation is considered an undesirable practice. The long established Legislative-Executive procedure has demonstrated the desirability of basically setting forth policy in the Legislation and relying on the prescribed rule making process to develop the appropriate regulations which are much more amenable to change indicated by new or unforseen circumstances such as technological developments. Wide powers of inspections, monitoring and entry, are given the Administrator to assist him in determining violations. Again the basic authority of the state is essentially preempted. Further, the procedures outlined in Section 308(a) (2) raise the questions of preemption of the right of due process under the law. But perhaps most important of all is the validity of the data which is produced under the threat of punitive action. The producer is in effect being requested to monitor himself in such fashion that he may be effectively prosecuted in accordance with prescribed procedures. Can he be expected to pursue with vigor the complex measurements required-many of these are difficult to maintain under favorable conditions. Section 309 (a) (1) “Federal Enforcement" appears to give the Administrator enforcement powers for any pollution anywhere. Again the Federal authority may preempt the state authority at any time the Administrator finds a violationpresumably there will be a national police force to carry this out. As mentioned in the beginning of this commentary, the staff print is impressive in its comprehensiveness. Many worthwhile improvements over the present Act are contained therein. Among these are: (1) Specific recognition of the need for the establishing and equipping a national water quality surveillance system Section 104(a) (5). (2) Addition of harmful effects on health of persons as a matter to be researched and considered by the Administrator (Section 104 (c)). (3) Inclusion of agricultural pollutants in several sections (Section 104 (c) (7) (0) Section 105 (d)). (4) Emphasis of implementation of state plans (Section 106(a) (1) (2)). (5) Recognition of desirability of supporting state certification activities Section 106 (d)) (6) Under Title II-rephasing of "purpose" to achieve water quality standards rather than merely preventing, discharging of untreated or inadequately treated water (Section 201). Increasing the Federal share and encouraging state contribution (Section 202). Requirement of equitable distribution of operation maintenance, depreciation and replacement costs of treatment works. (Section 204 (b)). (Such charges should not be punitive in nature and therefore "equitability" is an extremely important factor in such a program). (7) Inclusion of works required for combined sewer overflows (Section 210). (8) General provisions for intergovernmental cooperation (Section 303 (E). (9) The general provision on International Pollution (Section 310). (10) Transfer of pollution permit responsibility to EPA (Section 402). The above is by no means an exhaustive review of the point but most importantly to point out general areas of concern and encouragement with certain detailed references to specific sections to serve as supporting documentation. |