PORT OF SAN FRANCISCO By MIRIAM E. WOLFF, Port Director S. 1238 This subject legislation would further regulate the dumping of material in oceans, coastal and other waters, and gives new authority to the Environmental Protection Agency. Until now the Army Corps of Engineers has regulated and monitored this problem. As we indicated to the Corps of Engineers on their proposed regulations published in the Federal Register late last year, this matter must be divided between industrial waste disposal and dredged materials involved in port development and maintenance. The Corps agreed to the extent that they modified their proposed regulations to recognize this division. The foreign commerce of the United States depends on port facilities and no one at a port wants to harm the environment. All ports want to abide by reason. able regulations, but it is our view that EPA is not the agency to regulate port dredging. The American Association of Port Authorities appeared before Mr. Dingell and testified against the form of regulation prescribed in this legislation. We strongly urge you to use your influence to separate the industrial waste disposal problem from the port dredge disposal problem. It is our view that the Corps of Engineers, working with the EPA, will prescribe effective regulations to improve the quality of water while doing the least harm to the matter of disposal of maintenance dredging spoils. (1539) SOUTHERN CALIFORNIA EDISON COMPANY Southern California Edison Company is pleased to present its comments concerning S. 523, the proposed "National Water Quality Standards Act of 1971", and S. 1014 which propose amendments to the Federal Water Pollution Control Act, as amended. Edison is a California corporation which generates and distributes the electric energy needs of over seven million people in central and southern California. The 1971 Edison system has thermal electric generating resources of 9 million KW and hydro electric generation resources of 1 million KW. It is currently estimated that our customers will require an additional 10 million KW of generating capacity in the next decade and another 18 million KW or more in the 1980's. In view of its large existing system and its future growth, Edison has been and is extensively involved in water quality control and other aspects of the preservation of the environment. BACKGROUND-ENERGY NEEDS AND WATER QUALITY Electric energy is basic to the solution of a wide range of our environmental problems. Millions of kilowatts of future generating capacity will be needed to operate new systems to improve the environment like purifying water, cleaning up the air, recycling usable materials, disposal of waste, and powering rapid transit. We can't improve the quality of life in America by stopping the construction of vitally needed power plants. What is needed is a continued expansion of electric energy in a way that will better balance and control the negative impact on the environment. Until technology completely solves the problem of negative impact, we must work out livable compromises between more energy and preserving the environment. California utilities have sufficient generating capacity and reserves so we will not have power shortages in California in the next few years. However, if we are precluded from building p'ants on the coastline and if we do not have a regulatory system that can make timely decisions, we can, in the future, experience power shortages and blackouts similar to those in New York and other parts of the east. Almost everyone knowledgeable in the utility business as well as state of ficials agree that most, if not all, of new generating plants in California wil' have to be built on ocean sites utilizing salt water for cooling purposes. As you know, fresh water is precious, particularly in the southwest, and is not available in such large quantities. It takes about 30,000 acre-feet of consumptive water use annually for a nuclear plant of 11⁄2 million KW. This is equivalent to the total water consumed in a city the size of 200,000 people, or about the amount of water used annually in a city the size of Fresno, California. After 1976, most California utilities will rely mainly on nuclear power for their new units. Nuclear power is a clean form of energy. There is no combustion, so there are no sulfur oxides, nitrogen oxides, particulates or emissions to add to the smog problem. Despite the advantages of nuclear plants from the standpoint of minimizing air pollution, they are being attacked because of alleged adverse thermal effects of cooling water discharges. What about thermal effects on the California coast? A good example is the San Onofre nuclear generating station. For four years before this plant was built, six ocean-bottom stations were monitored, 32 water-surface stations and a number of shore monitoring stations were established within a three-mile area of the plant. Seven years of studies, four before the plant was in operation and three since the operation, have demonstrated that there is no significant adverse effect on marine ecology of the area as a result of operation of the plant. State Fish and Game officials have reaffirmed this conclusion. The thermal-effect controversy has been extended to all waters without an adequate rationale. The controversy should be primarily concerned with shallow and limited bodies of water, lakes, rivers and shoal waters of restricted circulation. Thermal discharges directly into the ocean in non-shoal areas is a different matter. Our studies have resulted in the conclusion that it is possible to design thermal discharge systems so as to avoid significant adverse effects upon the marine ecology of ocean waters. We are fortunate in California to have a coastline with relatively deep waters and massive currents where we can site generating plants to provide the energy required for the health, safety and economic wellbeing of our people and at the same time avoid significant impairment of the natural environment. BACKGROUND-FEDERAL WATER POLLUTION CONTROL ACT, AS AMENDED Edison supports the principal purposes and approach of the Federal Water Pollution Control Act. Measures for the control of water pollution should be developed in accordance with water quality standards and enforcement plans developed by the States. State action to abate water pollution should not be displaced by Federal enforcement action, unless the State fails to take reasonable action to enforce water quality standards. Federal action to assure setting and enforcement of water standards and enforcement plans should not be initiated unless a State fails to take reasonable action to achieve these purposes. Proper implementation of the Federal Water Pollution Control Act would, we believe, result in the development of a technically sound and rational plan by which pollution sources would be controlled primarily by State and local enforcement agencies. S. 523 departs significantly, and S. 1014 departs to a lesser degree, from the present approach of the Federal Water Pollution Control Act. We believe these departures are not in the total public interest. Both bills have the stated objective of encouraging more public participation in water quality control, yet this cannot be accomplished by moving control away from the local community. Under S. 523, the States are left without adequate substantive or procedural safeguards against Federal pre-emption of their jurisdiction. COMMENTS ON PENDING BILLS We submit the following analysis and comments concerning S. 523 and S. 1014. 1. PROTECTION OF HIGH QUALITY WATERS Analysis. Both bills seek to provide protection of high quality waters for the benefit of subsequent uses. S. 523 contains proposed Section 10(b) (1) which provides "no State standards and plan shall be approved which provide for the degradation of the present quality of any waters". S. 1014 contains proposed Section 10 (d) (3) which provides "in cases where the quality of water. . . is higher than water quality criteria applicable to any use designation, such high quality shall be maintained . . .". These provisions could be construed to preclude any alteration of the chemical, physical, biological, bacteriological, radiological or other properties or characteristics of water. Comments.-The objective of water control is to establish limits or levels of water quality constituents or characteristics necessary for the reasonable protection of beneficial uses of water. Any use of water alters its characteristics. To prohibit alteration is to prohibit any use. The objective of water quality control is achieved if quality after such use is still sufficient to reasonably protect subsequent uses. It is unrealistic and unwise to flatly prohibit uses of water which do not hinder the achievement of that objective. Unconditional and unqualified policy statements concerning the maintenance of high quality waters, such as those contained in S. 523 and S. 1014, can be misunderstood and in any event are unnecessary. They are unnecessary to protect subsequent beneficial uses if appropriate water quality criteria are established and enforced. If such policy statements are interpreted to prohibit any alteration of water quality, then the public is denied the use of a valuable resource with no offsetting public benefit. 2. OCEAN DISCHARGE PERMITS Analysis.-S. 523 contains proposed Section 10(d) (2) which would prohibit the discharge of matter into the territorial sea unless the Administrator has issued a permit. S. 1014 contains no comparable provision. Comments-While this provision may have been intended to establish controls over ocean dumping, its language is sufficiently broad to cover the discharge of effluent from outfall structures. To this extent, proposed Section 10 (d) (2) both duplicates and conflicts with existing law and regulations. Presently, ocean discharges through outfall structures may be subject to permits under the Refuse Act of 1899 and certification of compliance with applicable water qual ity 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 judg ment 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 |